                                                                                        10/30/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 25, 2017

        STATE OF TENNESSEE v. STEVEN DARE STEELMAN, JR.

                  Appeal from the Criminal Court for Knox County
                      No. 105752     Steven W. Sword, Judge


                            No. E2017-00016-CCA-R3-CD


The Defendant, Steven Dare Steelman, Jr., was convicted by a Knox County Criminal
Court jury of aggravated vehicular homicide, vehicular homicide by intoxication,
vehicular homicide by reckless conduct, vehicular assault, reckless endangerment with a
deadly weapon, third offense driving under the influence (DUI) per se, third offense DUI,
driving on a revoked license after two prior DUI convictions, and failure to provide proof
of financial responsibility. See T.C.A. §§ 39-13-218 (2014) (aggravated vehicular
homicide), 39-13-213 (2014) (amended 2015) (vehicular homicide by intoxication or
vehicular homicide by reckless conduct), 39-13-106 (2014) (amended 2015) (vehicular
assault), 39-13-103 (Supp. 2014) (amended 2015) (reckless endangerment with a deadly
weapon), 55-10-401 (2012) (amended 2013, 2015) (third offense DUI per se), 55-10-401
(2012) (amended 2013, 2015) (third offense DUI), 55-50-504 (2012) (amended 2016)
(driving on a revoked license after two prior DUI convictions), 55-12-139 (Supp. 2014)
(amended 2015) (failure to provide proof of financial responsibility). The trial court
merged the vehicular homicide by intoxication and vehicular homicide by reckless
conduct convictions with the aggravated vehicular homicide conviction. The court
merged the third offense DUI conviction with the third offense DUI per se conviction.
The court sentenced the Defendant to an effective thirty-two years’ confinement. On
appeal, the Defendant contends that (1) the evidence is insufficient to support his
convictions for aggravated vehicular homicide and vehicular assault, (2) the trial court
should have merged the reckless endangerment with a deadly weapon and vehicular
assault convictions, and (3) the trial court erred during sentencing. Although we affirm
the Defendant’s convictions, we remand the case to the trial court for the entry of
corrected judgments reflecting the merger of the third offense DUI per se conviction with
the vehicular assault conviction.


     Tenn. R. App. P. 3 Appeal as of Right; Judgments Affirmed in Part; Case
                  Remanded for Entry of Corrected Judgments
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

J. Liddell Kirk (on appeal) Keith Lieberman (at trial), Knoxville, Tennessee, for the
appellant, Steven Dare Steelman, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme Allen, District Attorney General; and Joe Welker and Gary
Eshbaugh, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

       This appeal arises from a car crash that occurred around noon on November 23,
2014, in which the Defendant’s son was killed. Knox County Sheriff’s Office (KCSO)
Detective Steven Sanders testified that he responded to the crash and that he observed a
car with front-end and passenger-side damage. Detective Sanders saw debris along the
side of the road, around a tree, and near a telephone pole. Detective Sanders stated that
the Defendant was the driver of the car and that two children were passengers. Detective
Sanders said that the Defendant was not injured. Detective Sanders stated that one of the
children was alert but that the other child was nonresponsive and died within one hour.
On cross-examination, Detective Sanders testified that the Defendant told him that he
swerved to avoid an oncoming vehicle, which caused the crash.

       Nathan Lawson, the Defendant’s nephew, testified that he was age twelve at the
time of trial and that he and his cousin, Steven Hounschell,1 were in a car driven by the
Defendant when it crashed. Mr. Lawson said that he and Mr. Hounschell got into the car
with the Defendant to go to the grocery store. Mr. Lawson stated that he was sitting in
the backseat behind the front passenger seat. Mr. Lawson said that he felt a bump and
heard tires spinning and that the car “crashed.” Mr. Lawson stated that he did not see
another vehicle.

       Mr. Lawson testified that after the crash, the Defendant told him to unbuckle his
seatbelt and get out of the car. Mr. Lawson said that he and the Defendant were “trying
to help [Mr. Hounschell breathe] again.” Mr. Lawson stated that he hurt his back in the
crash and that the Defendant told him to lie on the ground. Mr. Lawson said that he was
taken to the hospital, that he had three spinal fractures, and that he stayed in the hospital
for one day. Mr. Lawson stated that he wore a neck brace for approximately one to two
months and that doctors told him he would have back pain for the remainder of his life.

1
  The indictment and autopsy report state that the victim’s name was “Steven Hounschell.” The death
certificate states that the victim’s name was “Steven Dare Hounschell-Steelman, III.” We use the name
reflected in the indictment and autopsy report.


                                                -2-
Mr. Lawson stated that sometimes he had a “sharp pain going down [his] spine.” Mr.
Lawson said that Mr. Hounschell was age nine or ten when the crash occurred.

       On cross-examination, Mr. Lawson testified that he did not see the Defendant
drink alcohol before driving and that the Defendant behaved normally. Mr. Lawson did
not recall seeing other vehicles on the road.

       KCSO Officer Christopher Lougheed testified that he went to the crash site and
observed one child screaming and another child nonresponsive. Officer Lougheed said
that he assisted Officer Sanders with the nonresponsive child until paramedics arrived.
Officer Lougheed said that he smelled alcohol on the Defendant’s breath and that he
transported the Defendant to the hospital to obtain a blood sample.

        KCSO Officer Philip Elkins testified that he responded to the crash site, that the
Defendant told Officer Elkins he had drunk one-half quart of moonshine the night before
the crash, and that Officer Elkins smelled alcohol on the Defendant’s breath. Officer
Elkins said that he asked the Defendant for his phone number and that the Defendant had
a difficult time recalling the number. Officer Elkins stated that the Defendant’s speech
was slurred and that the Defendant had watery and bloodshot eyes. Officer Elkins said
that he determined the Defendant’s driver’s license had been revoked, and a copy of the
Defendant’s driving record showing the revoked status was received as an exhibit.
Officer Elkins stated that he asked the Defendant to perform a series of field sobriety
tests and that the Defendant was unable to perform the tests as instructed. Officer Elkins
said that the Defendant consented to provide a blood sample.

        The death certificate and autopsy report for Mr. Hounschell were received as
exhibits. Officer Elkins read a portion of the report into the record. The report reflected
that Mr. Hounschell was in the front passenger seat at the time of the crash, that the car
had struck a telephone pole and a tree, that Mr. Hounschell was pronounced dead shortly
after arriving at the hospital, and that the cause of death was blunt force trauma.

       Audio recordings of jail telephone calls between the Defendant and an
unidentified female were received as exhibits and were played for the jury. In the
recordings, the Defendant admitted that he had an alcohol problem and that he drank
alcohol the night before the crash, but he said he was not intoxicated at the time of the
crash. The Defendant stated that his blood should have only shown the presence of
Suboxone and marijuana.

        On cross-examination, Officer Elkins testified that the Defendant told him an
oncoming vehicle caused him to swerve off of the road. Officer Elkins acknowledged
that field sobriety tests were not 100% accurate and that it was possible trauma from the
crash affected the Defendant’s ability to follow instructions during the tests. Officer
Elkins stated that the tests were administered on flat ground and that he provided the

                                            -3-
Defendant with an option to perform the tests without shoes, but the Defendant declined
and wore his boots. Officer Elkins said that wearing boots may have affected the
Defendant’s performance. Officer Elkins stated that the Defendant’s speech was slurred
but admitted that his police report did not note it. Officer Elkins testified that the
Defendant reported last drinking alcohol at 1:00 a.m. on the morning of the crash.

       On redirect examination, Officer Elkins testified that the Defendant told him that
he was not injured during the crash. Officer Elkins stated that the Defendant was “unfit
to operate the vehicle safely.”

       KCSO Officer Lee Strzelecki testified that he escorted the Defendant to the
phlebotomy lab for extraction of the blood sample. Officer Strzelecki stated that the
Defendant told him that he swerved to avoid an oncoming vehicle and that he lost
control. Officer Strzelecki said that the Defendant reported smoking marijuana and
drinking moonshine the night before the crash. Officer Strzelecki stated that the
Defendant had slurred speech, smelled of alcohol, had bloodshot eyes, and appeared to be
“impaired.”

       Officer Strzelecki testified that he also inspected the Defendant’s car after the
crash. Officer Strzelecki did not find any mechanical issues that would have caused the
crash.

        On cross-examination, Officer Strzelecki testified that the Defendant had a minor
head wound and that a nurse cleaned dried blood from the wound. Officer Strzelecki
testified that a “wheel stud” had fallen off of a brake drum on the Defendant’s car but
said that it would not have affected the car’s performance. Officer Strzelecki stated that
the rear tires were worn and needed replacing but that did not cause the crash.

       Tennessee Bureau of Investigation (TBI) Special Agent Michael Tiller testified
that he analyzed the Defendant’s blood sample and that the results revealed the
Defendant’s blood alcohol concentration (BAC) was 0.144%. Agent Tiller said that an
average person with a BAC of 0.14% would suffer from delayed reaction times, motor
coordination loss, difficulty with vision, slurred speech, difficulty walking, memory loss,
and difficulty following directions. Agent Tiller stated that an average person with a
BAC of 0.14% would have impaired judgment but acknowledged that it was possible to
build a tolerance to alcohol if consumed often.

        TBI Special Agent Melanie Carlisle testified that she performed further analysis
on the Defendant’s blood sample to determine whether narcotics were present. Agent
Carlisle stated that the sample was positive for marijuana metabolites, which were
present when a body metabolized marijuana. On cross-examination, Agent Carlisle
testified that marijuana metabolites could be present up to one week after use.


                                            -4-
       KCSO Officer Timothy Belcher, a crash reconstructionist expert, testified that
based on his investigation, the Defendant was driving at a “significantly greater” speed
than thirty-nine miles per hour and that the speed limit was forty miles per hour. Officer
Belcher said that the road was wet but that hydroplaning did not occur because no
standing water was present on the road. He stated that, in his opinion, based on
environmental conditions, the Defendant’s state of mind, and the Defendant’s level of
impairment, the Defendant failed to maintain control of the car, which caused the crash.

       On cross-examination, Officer Belcher testified that his summary of the
investigation stated the primary cause of the crash was the Defendant’s reckless
operation, not intoxication. Officer Belcher said that the tire marks at the scene did not
support the Defendant’s claim that the Defendant swerved to miss an oncoming vehicle.
On redirect examination, Officer Belcher testified that the Defendant was impaired and
was unable to maintain control of the car, causing the crash.

       Teresa Allison testified for the defense that the Defendant, who was her son-in-
law, lived in her home. Ms. Allison said that she did not see the Defendant drink alcohol
or smoke marijuana on the morning of the crash. Ms. Allison said that she had
previously seen the Defendant too intoxicated to drive but that he did not appear
intoxicated or have slurred speech that morning. Ms. Allison stated that she went to the
crash scene with her daughter, who was the Defendant’s wife, and observed Mr.
Hounschell and Mr. Lawson receiving medical treatment. Ms. Allison stated that she
later observed the Defendant performing field sobriety tests and that he “looked fine.”

      On cross-examination, Ms. Allison testified that she was unaware that the
Defendant’s driver’s license had been revoked. Ms. Allison stated that the Defendant
awoke at 10:30 a.m. on the morning of the crash.

       The Defendant testified that on the night before the crash, he was home watching
football with Mr. Hounschell, Mr. Lawson, and his niece. The Defendant stated that he
drank most days and that he began drinking at 5:00 p.m. on the day before the crash. He
said that he drank moonshine and smoked marijuana and that he stopped drinking at 1:00
a.m. He stated that he awoke the next morning at 10:30 a.m. with a hangover and that he
spent the morning working in the garage and playing football with Mr. Hounschell and
Mr. Lawson.

       The Defendant testified that he left home with Mr. Hounschell and Mr. Lawson to
go to the grocery store. The Defendant was aware he did not have a valid driver’s license
or insurance. The Defendant stated that he did not feel any effects from the alcohol or
marijuana and that the hangover did not affect his driving.

      The Defendant testified that he saw a black vehicle driving toward him and that he
swerved to miss the vehicle to avoid a crash. The Defendant said that he overcorrected,

                                           -5-
hydroplaned, and lost control of the car. The Defendant said that he lost consciousness
and that Mr. Lawson woke him. The Defendant stated that Mr. Lawson was alert but that
Mr. Hounschell was nonresponsive. The Defendant said that he unfastened Mr.
Hounschell’s seatbelt, removed him from the car, and placed him on the grass. The
Defendant stated that he told Mr. Lawson to lie on the grass because Mr. Lawson’s back
hurt. The Defendant said that he was performing CPR on Mr. Hounschell when the
police arrived. The Defendant stated that Mr. Hounschell and Mr. Lawson were taken to
the hospital by ambulances.

        The Defendant testified that he agreed to perform field sobriety tests and that he
felt as though Officer Elkins treated him unfairly during the tests. The Defendant stated
that the left side of his head was bleeding and that he told Officer Elkins he had a head
injury. The Defendant said that he asked the officers for medical assistance but never
received treatment. The Defendant stated that he had been crying and that it was possible
his eyes were bloodshot. The Defendant said his speech was not slurred.

        The Defendant testified that he was arrested for DUI and that he was taken to the
hospital. The Defendant said that he gave a blood sample, that he was escorted back to
the patrol car, and that an officer told him Mr. Hounschell had died. The Defendant
stated that the police took him to jail.

       On cross-examination, the Defendant testified that he “passed out drunk the night
before” and that he did not eat breakfast on the morning of the crash. He stated that he
had been an alcoholic and that he drank daily after work but said that he “maintained
composure.” The Defendant stated that he enjoyed smoking marijuana and that he had
been receiving Suboxone from a drug treatment clinic for approximately two years.

       On rebuttal, the State recalled Officer Belcher, who testified that the area in which
the Defendant claimed to have encountered the oncoming vehicle was hundreds of feet
from the scene of the crash.

        Upon this evidence, the Defendant was convicted of vehicular homicide by
intoxication, vehicular homicide by reckless conduct, vehicular assault, reckless
endangerment with a deadly weapon, DUI per se, DUI, driving on a revoked license, and
failure to provide evidence of financial responsibility.

        After the jury rendered its verdicts, the jury considered in a bifurcated proceeding
whether the Defendant had previous DUI convictions. Certified copies of the
Defendant’s two prior DUI convictions were received as exhibits. The Defendant’s
official driver’s license report and history, which noted the license had been revoked due
to previous DUI convictions, was also received as an exhibit.



                                            -6-
       Upon this evidence, the Defendant was convicted of aggravated vehicular
homicide as a result of his two prior DUI convictions, third offense DUI per se, third
offense DUI, and driving on a revoked license as a result of a second DUI conviction.
This appeal followed.

                                     I.     Sufficiency

       The Defendant contends that the evidence is insufficient to sustain his convictions
for aggravated vehicular homicide because the evidence failed to show that intoxication
was the proximate cause of the car crash. The Defendant also contends that the evidence
is insufficient to sustain a conviction for vehicular assault because the evidence failed to
show that Mr. Lawson suffered serious bodily injury as a proximate result of the
Defendant’s recklessness or intoxication. The State responds the evidence is sufficient.
We agree with the State.

        In determining the sufficiency of the evidence, the standard of review 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 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.

                            Aggravated Vehicular Homicide

       Vehicular homicide is defined, in relevant part, as “the reckless killing of another
by the operation of an automobile . . . as the proximate result of . . . [t]he driver’s
intoxication, as set forth in [the DUI statute, 55-10-401(a).]” Id. § 39-13-213(a)(2).
“Intoxication,” for purposes of DUI exists when a person is

       “[u]nder the influence of any intoxicant . . . that impairs the driver’s ability
       to safely operate a motor vehicle by depriving the driver of the clearness of

                                             -7-
       mind and control of oneself that the driver would otherwise possess; [or
       the] blood alcohol concentration in the person’s blood or breath is eight-
       hundredth’s of one percent (0.08%) or more[.]”

Id. 55-10-401(1) (2013) (amended 2015). Aggravated vehicular homicide is defined, in
relevant part, as vehicular homicide where a defendant has “two (2) or more prior
convictions for . . . [d]riving under the influence of an intoxicant[.]” Id. § 39-13-
218(a)(1).

        The Defendant asserts that the evidence is insufficient to prove that the proximate
cause of the car crash was the Defendant’s intoxication. In the light most favorable to the
State, the evidence shows that the Defendant’s intoxication was the proximate cause of
the car crash.

       The Defendant testified that he began drinking at 5:00 on the evening before the
crash. The Defendant admitted to officers that that he drank one-half quart of moonshine
and smoked marijuana. The Defendant said that he stopped drinking at 1:00 a.m. and that
he did not eat breakfast on the morning of the crash. The TBI analysis showed that the
Defendant’s BAC from blood collected at 1:45 p.m. was 0.144%.

       Multiple officers testified that the Defendant had slurred speech and that they
smelled alcohol on the Defendant’s breath. Officer Elkins testified that based on his
observations of the field sobriety tests, the Defendant was unfit to operate a vehicle
safely. Agent Tiller testified that an average person with a BAC of 0.14% would suffer
from delayed reaction times, motor coordination loss, difficulty with vision, slurred
speech, difficulty walking, memory loss, difficulty following directions, and impaired
judgment.

        Mr. Lawson, the only witness to the crash other than the Defendant, testified that
he did not observe an oncoming vehicle. Officer Strzelecki conducted a mechanical
inspection and stated that mechanical issues did not cause the crash. Officer Belcher, a
crash reconstructionist, testified that hydroplaning did not cause the crash because no
standing water was on the road and that no tire marks showed that the Defendant swerved
to miss an oncoming vehicle. Officer Belcher stated that the area in which the Defendant
claimed to have encountered another vehicle was hundreds of feet from the crash site.
Officer Belcher said that the Defendant was impaired and was unable to maintain control
of his car, which caused the crash. In the bifurcated portion of the trial, copies of the
Defendant’s two prior DUI convictions were received as exhibits. We conclude that
sufficient evidence exists to show that the Defendant’s intoxication was the proximate
cause of the car crash and to support the Defendant’s aggravated vehicular homicide
conviction. The Defendant is not entitled to relief on this basis.



                                            -8-
                                      Vehicular Assault

       The Defendant argues that Mr. Lawson did not suffer “serious bodily injury” as
defined in Tennessee Code Annotated section 39-11-106(a)(34) (2014), in that Mr.
Lawson did not suffer life-threatening injuries, that he was not unconscious, and that he
did not suffer obvious disfigurement. Furthermore, the Defendant argues that because
Mr. Lawson was older than age eight at the time of the car crash, the child broken-bone
provision of the serious bodily injury definition did not apply.

       An individual commits vehicular assault when his conduct “as the proximate result
of the person’s intoxication as set forth in § 55-10-401, recklessly causes serious bodily
injury to another person by the operation of a motor vehicle.” Id. § 39-13-106(a).
“Serious bodily injury means bodily injury that involves . . . [a] broken bone of a child
who is twelve (12) years of age or less[.]” Id. § 39-13-106(a)(34)(C), (F).

       In the light most favorable to the State, the evidence is sufficient to sustain the
Defendant’s conviction for vehicular assault. As previously established, the crash was
the proximate result of the Defendant’s intoxication. Mr. Lawson testified that on
September 12, 2016, he was age twelve. The car crash occurred on November 23, 2014.
At the time of the crash, evidence shows that Mr. Lawson was under the age of twelve
and that he suffered three spinal fractures. These injuries, by definition, were serious
bodily injuries. Id. The evidence is sufficient to support the Defendant’s vehicular
assault conviction. The Defendant is not entitled to relief on this issue.

                                II.      Double Jeopardy

       Vehicular Assault and Reckless Endangerment with a Deadly Weapon

        The Defendant contends that his vehicular assault and reckless endangerment
with a deadly weapon convictions violate principles of double jeopardy. He argues that
elements from both convictions are essentially the same and that the convictions must
merge pursuant to Blockburger, which our supreme court adopted in State v. Watkins,
362 S.W.3d 530, 541-42 (Tenn. 2012), for purposes of double jeopardy violations. The
State responds that the Defendant has waived appellate review because this issue was not
raised in his motion for a new trial.

      Rule 3(e) of the Tennessee Rules of Appellate Procedure provides, in part:

      [I]n all cases tried by a jury, no issue presented for review shall be
      predicated upon error in the admission or exclusion of evidence, jury
      instructions granted or refused, misconduct of jurors, parties or counsel, or
      other action committed or occurring during the trial of the case, or other
      ground upon which a new trial is sought, unless the same was specifically

                                             -9-
       stated in a motion for a new trial; otherwise such issues will be treated as
       waived.

The record reflects that the Defendant failed to raise this issue in his motion for a new
trial and that he raised this issue for the first time on appeal. Therefore, our review is
limited to consideration of whether plain error exists.

       Five factors are relevant

       when deciding whether an error constitutes “plain error” in the absence of
       an objection at trial: “(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.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must exist in order for plain error
to be recognized. Id. at 283. “[C]omplete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Id.
In order for this court to reverse the judgment of a trial court, the error must be “of such a
great magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899
S.W.2d at 642.

        The record clearly establishes what occurred in the trial court. See Adkisson, 899
S.W.2d 641-42. The record does not reflect that the Defendant waived the issue for
tactical purposes. See id. Resolution of whether he has established the remaining
prerequisites for plain error relief is more complex. See id.

      The Fifth Amendment of United States Constitution and Article I, section 10 of
the Tennessee Constitution provide that no person should be put “in jeopardy of life or
limb” twice for the same offense. U.S. Const. amend. V, Tenn. Const. art. I, § 10.
Double jeopardy principles proscribe multiple punishments for the same conduct. See
Watkins, 362 S.W.3d at 541-42.

       In Watkins, our supreme court abandoned the analysis provided previously in State
v. Denton, 938 S.W.2d 373 (Tenn. 1996), and adopted the “same elements” analysis
delineated by the United States Supreme Court in Blockburger v. United States, 284 U.S.
299, 304 (1932). Therefore, whether dual convictions violate double jeopardy principles
requires a determination of “whether the convictions arise from the same act or
transaction.” Watkins, 362 S.W.3d at 557. If the convictions arise from the same act or
transaction, the second inquiry is whether the elements of the offenses are the same or
whether one offense is a lesser included offense of the other. Id. If the elements are the

                                            -10-
same or one offense is a lesser included offense of the other, dual convictions violate
double jeopardy principles. Id. Appellate courts “will presume that multiple convictions
are not intended by the General Assembly” when the elements of the offenses are the
same or when one offense is a lesser included offense of the other. Id.

       As previously defined, vehicular assault requires the State to prove that the
Defendant was intoxicated and that the proximate result of his intoxication caused
seriously bodily injury to another by the operation of a motor vehicle. See T.C.A. § 39-
13-106(a). A person commits reckless endangerment with a deadly weapon when one
“recklessly engages in conduct that places or may place another person in imminent
danger of death or serious bodily injury . . . committed with a deadly weapon.” See id. §
39-13-103(a), (b)(2). A “deadly weapon” is defined as “a firearm or anything manifestly
designed, made or adapted for the purpose of inflicting death or serious bodily injury; or
anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” See id. § 39-11-106(5)(A), (B) (2014). This court has held that a
vehicle may be used as a deadly weapon. See State v. Tate, 912 S.W.2d 785 (Tenn. Crim.
App. 1995).

       The threshold inquiry pursuant to Blockburger and Watkins is whether the
Defendant’s convictions for vehicular assault and reckless endangerment with a deadly
weapon arise from the same act or transaction. The record reflects that both convictions
stem from the car crash that occurred on November 23, 2014. Therefore, the threshold
inquiry is satisfied.

        However, vehicular assault contains several elements not contained in reckless
endangerment with a deadly weapon. Vehicular assault requires both intoxication and
reckless conduct, while reckless endangerment with a deadly weapon requires only
recklessness. Vehicular assault also requires that the intoxication cause serious bodily
injury to another person. Reckless endangerment with a deadly weapon, on the other
hand, does not require serious bodily injury, but merely that an individual or individuals
are placed in danger of death or serious bodily injury. Finally, vehicular assault requires
the use of a vehicle, but reckless endangerment with a deadly weapon does not require
that the deadly weapon be a vehicle.

        Our review of the statutory elements of the offenses does not reveal that the
Tennessee General Assembly intended to prohibit convictions for both offenses nor is
one a lesser included offense of the other for purposes of the Blockburger test. See State
v. Cross, 362 S.W.3d 512 (Tenn. 2012); see also Watkins, 362 S.W.3d at 557. Therefore,
the Defendant has now shown that a clear and unequivocal rule of law has been breached.
See Adkisson, 899 S.W.2d at 282. Likewise, he has failed to establish that a substantial
right has been adversely affected and that consideration of the alleged error is necessary
to do substantial justice. See id. No plain error exists, and the Defendant is not entitled
to relief on this basis.

                                           -11-
                  Vehicular Assault and Driving under the Influence

       Although not raised on appeal by the parties, as a matter of plain error, we
conclude that dual convictions for vehicular assault and DUI violate double jeopardy
principles. This court has previously held that DUI is a lesser included offense of
vehicular assault and that “for double jeopardy purposes, a person cannot be punished
separately for DUI and vehicular assault for one act of driving under the influence that
causes serious bodily injury.” State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim. App.
1995). As such, the Defendant’s convictions for DUI should merge with the vehicular
assault conviction. We remand for the entry of corrected judgments reflecting merger of
these offenses.

                                    III.   Sentencing

       The Defendant contends that his thirty-two-year sentence is excessive. The
Defendant argues that he did not act intentionally or maliciously and that he is genuinely
remorseful. The State responds that the trial court did not abuse its discretion. We agree
with the State.

        At the sentencing hearing, the presentence report was received as an exhibit and
reflected that the Defendant had convictions for aggravated assault, two counts of
aggravated burglary, ten counts of theft-related offenses, four counts of evading arrest,
three counts of drug-related offenses, two counts of DUI, two counts of vandalism, public
intoxication, driving on a suspended license, and underage possession of alcohol. The
Defendant’s convictions date to 1999, when the Defendant was found delinquent as a
juvenile for a burglary-related offense. The report reflected that the Defendant had
multiple probation violations and a parole violation.

       The presentence report reflected that the Defendant was age thirty-five and had
four children, including Mr. Hounschell. The report reflected that the Defendant had
steady employment and that he had earned a high school diploma. He reported that he
suffered from depression, bipolar disorder, and paranoia. He began using marijuana
regularly at age fourteen, although he no longer used it. He reported first using alcohol at
age five and regular use beginning at age sixteen. He reported that he drank one-half
quart of moonshine or a six-pack of beer daily but that he had been sober for five years.

       KCSO Officer Thomas Walker testified that the Defendant admitted to being an
Aryan Brotherhood gang member. Officer Walker stated that the Defendant had two
distinctive tattoos signifying the gang.

       The Defendant expressed in an allocution his remorse and stated that he had lost
his family due to his actions. The Defendant maintained that he was not intoxicated at
the time of the crash.

                                           -12-
       The trial court considered the evidence presented at the trial and the sentencing
hearing, the presentence report, the arguments made by counsel, and the Defendant’s
allocution. The court found that mitigating factor (13) applied because the Defendant
was remorseful for his actions. See T.C.A. § 40-35-113(13) (2014) (“Any other factor
consistent with the purposes of this chapter.”). The court also found that the Defendant
had a history of steady employment. Id.

        The trial court found that the Defendant had an extensive criminal history. See id.
§ 40-35-114(1) (2014) (amended 2015, 2016, 2017) (“The defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range[.]”). The court found that enhancement factor (8) applied
because the Defendant had multiple probation violations and had “failed to comply with
conditions . . . throughout most of his criminal history.” See id. § 40-35-114(8) (“The
defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community[.]”) The court found that enhancement factor (11)
applied because the Defendant had previously been convicted of aggravated assault,
resulting in death or serious bodily injury and that the present offenses had resulted in a
death. See id. § 40-35-114(11) (“The felony resulted in death or serious bodily injury, or
involved the threat of death or serious bodily injury, to another person, and the defendant
has previously been convicted of a felony that resulted in death or serious bodily
injury[.]”) The court found that enhancement factor (16) applied because the Defendant
had a juvenile burglary adjudication. See id. § 40-35-114(16) (“The defendant was
adjudicated to have committed a delinquent act or acts as a juvenile that would constitute
a felony if committed by an adult.”)

       The trial court found that the Defendant was a Range I, standard offender
regarding the aggravated vehicular homicide conviction. The court merged the
convictions for vehicular homicide by intoxication and vehicular homicide by reckless
conduct with the aggravated vehicular homicide conviction and sentenced the Defendant
to twenty years’ confinement. The court found that the Defendant was a Range III,
career offender regarding the vehicular assault conviction, sentenced the Defendant to
twelve years’ confinement, and ordered the sentence be served consecutively with the
aggravated vehicular homicide sentence. The court found that ordering consecutive
sentences was appropriate based on the Defendant’s extensive criminal history.

       The trial court found that the Defendant was a Range III, career offender regarding
the reckless endangerment with a deadly weapon conviction, sentenced the Defendant to
six years’ confinement, and ordered the sentence be served concurrently with the
aggravated vehicular homicide sentence. The court merged the Defendant’s third offense
DUI per se and third offense DUI convictions. The court sentenced the Defendant to
eleven months, twenty-nine days’ confinement, and ordered the sentence be served
concurrently with the aggravated vehicular homicide sentence. The court ordered


                                           -13-
concurrent service for the remaining convictions, for an effective thirty-two-year
sentence.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

       The abuse of discretion with a presumption of reasonableness standard also
applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859
(Tenn. 2013). A trial court has broad discretion in determining whether to impose
consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a
preponderance of the evidence that one criterion is satisfied in Tennessee Code
Annotated section 40-35-115(b)(1)-(7) (2014). In determining whether to impose
consecutive sentences, though, a trial court must ensure the sentence is “no greater than
that deserved for the offense committed,” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4); see
State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

        Based on the record, we conclude that the trial court did not abuse its discretion in
ordering consecutive sentences. The trial court considered the appropriate purposes and
principles of sentencing. The court may order consecutive sentences if the court finds by
a preponderance of evidence that the “defendant is an offender whose record of criminal
activity is extensive.” T.C.A § 40-35-115(b)(2) (2014). The record supports the court’s
findings that the Defendant has an extensive criminal record. The Defendant had more

                                            -14-
than twenty-five previous convictions, three of which were crimes of violence. The
Defendant is not entitled to relief on this basis.

        In consideration of the foregoing and the record as a whole, we affirm the
Defendant’s convictions. However, because double jeopardy principles require merger of
the Defendant’s convictions for third offense DUI per se and third offense DUI with his
vehicular assault conviction, we remand the case to the trial court for the entry of
corrected judgments reflecting the merger. The judgments of the trial court are affirmed
in all other respects.



                                        ____________________________________
                                        ROBERT H. MONTGOMERY, JR., JUDGE




                                         -15-
