         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 16, 2002

               STATE OF TENNESSEE v. WILMORE HATFIELD

                 Direct Appeal from the Criminal Court for Fentress County
                           No. 7750    Eric Shayne Sexton, Judge



                   No. M2002-00939-CCA-R3-CD - Filed February 26, 2003


The Appellant, Wilmore Hatfield, was indicted for attempted first degree murder, aggravated assault,
felony possession of a weapon, and driving under the influence (DUI). Following a jury trial,
Hatfield was found guilty of felony reckless endangerment, as a lesser-included offense of
aggravated assault, and DUI. He was sentenced to concurrent sentences of two years for the felony
reckless endangerment conviction and eleven months, twenty-nine days for the DUI conviction. On
appeal, Hatfield raises the following issues for our review: (1) whether felony reckless endangerment
is a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the trial
court’s DUI instruction was proper; (3) whether the evidence was sufficient to support the verdicts;
and (4) whether his sentences were excessive. We hold that felony reckless endangerment is not a
lesser-included offense of aggravated assault committed by intentionally or knowingly causing
bodily injury to another by use or display of a deadly weapon. Therefore, the felony reckless
endangerment conviction must be reversed and remanded for a new trial on the lesser charge of
misdemeanor assault. Regarding Hatfield’s DUI conviction, we conclude that the trial court properly
charged the jury and the evidence was sufficient to support the verdict. However, we find that the
trial court erred by ordering Hatfield to serve his entire eleven-month and twenty-nine-day sentence
in the county jail. Accordingly, his DUI conviction is affirmed; however, his sentence is modified
to reflect a sentence of eleven months and twenty-nine days, with all time suspended except forty-
eight hours to be served in the county jail.

 Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed in Part;
                          Sentence Modified; and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT
WILLIAMS, JJ., joined.

Onnie L. Winebarger, Byrdstown, Tennessee, for the Appellant, Wilmore Hatfield.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B.
Marney, Assistant Attorney General; William Paul Phillips, District Attorney General; and Paul G.
Galloway, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

        On February 9, 1999, the Appellant received his income tax check and traveled to the Top
of The Mountain Market in Fentress County, where he purchased two six-packs of beer. The
Appellant then proceeded to Obe Delk’s meat packaging business just before dark. As the Appellant
drove onto the business premises, Tracey Kerney, the victim, came outside and a heated conversation
between the two ensued. The victim, who was highly intoxicated, began to beat the Appellant. To
avoid further confrontation, the Appellant drove away. The Appellant testified that Kerney hit him
in the head with a pistol and, during the altercation, the weapon fell onto the floor of the Appellant’s
vehicle. However, the victim denied having a gun.

        The Appellant returned about thirty minutes later. He explained that, shortly after leaving,
he discovered approximately $332.00 of his income tax refund and some tax papers had fallen out
of his pocket during the fracas with Kerney and he had returned to recover the items. Upon his
return, the victim again exited the business. Delk testified that, on this occasion, the Appellant
cocked the gun and shot at the victim saying, “Run, bitch! Run!” The bullet struck the victim in the
foot. The Appellant denied making such a statement and claimed that he was trying to unload the
gun, when his thumb slipped off the hammer and it went off. The Appellant then drove away.

       State Trooper Kevin Norris was at the Sheriff’s office when a call concerning the shooting
incident was reported. Shortly thereafter, Trooper Norris observed the Appellant’s vehicle on
Highway 52, where the Appellant was stopped. Norris testified that he smelled alcohol on the
Appellant; however, he also testified that the Appellant did not appear to be under the influence of
an intoxicant. Upon a search of the vehicle, Norris found “a .32 caliber pistol under the seat and
some beer bottles.” About forty-five minutes after the initial stop, the Appellant was taken to the
hospital, where a blood sample was drawn, and his blood alcohol content was determined to be
.11%.

        A Fentress County grand jury returned a four count indictment charging the Appellant with
attempted first degree premeditated murder, aggravated assault, felony possession of a weapon, and
DUI. At the conclusion of a jury trial, the trial court charged attempted first degree murder, second
degree murder as a lesser-included offense of that charge; aggravated assault, reckless aggravated
assault and felony reckless endangerment as lesser-included offenses of that charge; and DUI. The
Appellant was found guilty of felony reckless endangerment and DUI. This timely appealed
followed.




                                                  -2-
                                             ANALYSIS

                                I. Felony Reckless Endangerment

        First, the Appellant contends that “the trial court erred in charging the jury with felony
reckless endangerment as a lesser included offense because all the elements of felony reckless
endangerment are not contained in the crimes as charged in the indictment.” As previously noted,
the trial court charged felony reckless endangerment as a lesser-included offense of aggravated
assault. The indictment for aggravated assault alleged that the Appellant “did unlawfully,
feloniously, intentionally, and knowingly cause bodily injury to Tracey C. Kerney by shooting her
with a pistol, a deadly weapon.”

        Convicting a person of a crime neither raised by the indictment nor a lesser-included offense
thereof violates the Sixth Amendment, which requires that the State inform the accused "of the
nature and cause of the accusation against him." U.S. CONST . amend. VI. Allowing the Appellant
to be convicted for an offense that was neither charged in the indictment nor properly classified as
a lesser-included offense denies him appropriate notice of the charge against him. See, e.g., Hagner
v. United States, 285 U.S. 427, 52 S. Ct. 417 (1932); Wong Tai v. United States, 273 U.S. 77, 47 S.
Ct. 300 (1927); Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434 (1896); Watson v. Jago, 558 F.2d
330 (6th Cir. 1977) (all holding that the accused is denied proper notice unless the description of the
offense will enable the accused to make out a defense or otherwise appropriately plead his case).

       An offense is a lesser included offense if:

       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or

       (b) it fails to meet the definition in part (a) only in the respect that it contains a
       statutory element or elements establishing:

               (1) a different mental state indicating a lesser kind of culpability;
               and/or

               (2) a less serious harm or risk of harm to the same person, property or
               public interest; or

       (c) it consists of

               (1) facilitation of the offense charged . . .; or

               (2) an attempt to commit the offense charged . . .; or

               (3) solicitation to commit the offense charged.


                                                  -3-
State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). Here, the Appellant was indicted for aggravated
assault but was convicted of felony reckless endangerment. Aggravated assault, as charged in this
case, requires (1) a person to intentionally or knowingly cause bodily injury to another and (2) use
or display a deadly weapon. Tenn. Code Ann. §§ 39-13-101(a)(1)(B), -102(a) (Supp. 2002). By
comparison, the offense of felony reckless endangerment, for which the Appellant was convicted,
requires (1) a person to recklessly engage in conduct which places or may place another person in
imminent danger of death or serious bodily injury and (2) use or display a deadly weapon. Tenn.
Code Ann. § 39-13-103 (1997).

         Application of the lesser-included offense test articulated in Burns requires the conclusion
that felony reckless endangerment is not a lesser-included offense of aggravated assault committed
by intentionally or knowingly causing bodily injury to another by use or display of a deadly weapon.
Part (a) of the Burns test is not satisfied because the risk of danger element required for felony
reckless endangerment is not an element necessary to establish aggravated assault as herein charged.
Part (b)(1) of the Burns test is not satisfied because the disparate element, risk of danger, does not
pertain to the relevant mental state. Applying part (b)(2), we conclude that the presence of imminent
danger of death or serious bodily injury is not an essential element of aggravated assault committed
by causing bodily injury to another by use or display of a deadly weapon. Our supreme court in State
v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002), held that felony reckless endangerment was not a
lesser-included offense of aggravated assault committed by intentionally or knowingly causing
another to reasonably fear imminent bodily injury by use or display of a deadly weapon. While the
Appellant was indicted under a different theory of aggravated assault, the analysis of Moore is
equally applicable here. One can commit the offense of aggravated assault as herein charged without
creating the presence of imminent danger of death or serious bodily injury. The danger produced
during the commission of felony reckless endangerment produces a more serious harm or risk of
harm than that produced during the commission of aggravated assault committed by intentionally
or knowingly causing bodily injury to another by use or display of a deadly weapon; therefore, part
(b)(2) of the Burns test is not satisfied. Finally, felony reckless endangerment does not consist of
facilitation of, attempt to commit, or solicitation to commit aggravated assault. We, therefore, find
that part (c) of the Burns test is not satisfied. As such, felony reckless endangerment is not a lesser-
included offense of aggravated assault as herein charged.1 For these reasons, the felony reckless
endangerment conviction must be reversed, and the conviction is remanded for a new trial on the
remaining lesser charge of misdemeanor assault.

                                               II. DUI Charge

       Next, the Appellant argues that the trial court’s instruction with regard to the offense of DUI
was incomplete. The trial court submitted the following pattern DUI instruction to the jury:



        1
          Because felony reckless endangerment is not a lesser-included offense of aggravated assault, we find it
unnecessary to address whether the evidence was sufficient to support the Appellant’s felony reckless endangerment
conviction a nd wh ether his sentenc e on that charge was excessive.

                                                       -4-
               Any person who commits the offense of driving under the influence of an
        intoxicant is guilty of a crime.
                For you to find the defendant guilty of this offense, the state must have
        proven beyond a reasonable doubt the existence of the following essential elements:

                       (1) that the defendant was driving or was in physical control
               of an automobile or motor driven vehicle; and
                       (2) that this act occurred on a public road or highway, or
               public street or alley, the premises of any shopping center, the
               premises of any trailer park, the premises of any apartment house
               complex, or any other premises which are generally frequented by the
               public at large; and
                       (3)(a) that the defendant was under the influence of an
               intoxicant; or
                           (b) the alcohol concentration in such person’s blood or breath is
        ten hundredths of one (.10%) percent or more.

T.P.I. – Crim. 38.01. The Appellant objected to the charge, arguing that it did not adequately
connect the act of driving and the condition of impairment. The trial court overruled the objection
based upon the following rationale:

               I simply stated the statute and it may have been a poorly drafted statute, and
        I probably could have filled in certain bits, but I think that goes toward argument and
        what the jury – what the jury believes. I think it adequately stated the law that I
        wanted them to consider. . . .

         A trial court has the duty, in criminal cases, to fully instruct the jury on the general principles
of law relevant to the issues raised by the evidence. In other words, the court must instruct the jury
on those principles closely and openly connected with the facts before the court and which are
necessary for the jury's understanding of the case. While a defendant may request special
instructions, jury instructions are sufficient where they adequately state the law. See, e.g., State v.
Tyson, 603 S.W.2d 748 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1980). When a trial
court's charge to the jury is complete, it need not give additional special instructions requested by
a defendant. State v. Story, 608 S.W.2d 599, 603 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1980). The instruction informed the jury that in order to convict the Appellant of DUI, the proof was
required to establish (1) that the Appellant was driving a vehicle and (2) that his blood alcohol
concentration was ten hundredths of one (.10%) percent or more. In our view, the contested pattern
jury instruction is sufficient. Clearly, the instruction implied that the driver must be impaired at the
time of operating the vehicle. Nonetheless, we note that the insertion of the word “while” between
sections two and three of the pattern instruction would remedy the need for further appellate review
of this issue. There was no requirement that the trial court give the special request, and no error
occurred by the refusal to do so. This issue is without merit.



                                                    -5-
                                        III. DUI Sufficiency

         The Appellant contends that the evidence is insufficient to support his DUI conviction. A
jury conviction removes the presumption of innocence with which a defendant is cloaked and
replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d
713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented
at trial was so deficient that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State
is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may
be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990).

        The Appellant was charged in a single count indictment of driving under the influence, first
offense. The indictment charged alternatively that the Appellant operated his vehicle (1) while under
the influence of an intoxicant or (2) while the alcohol concentration in his blood was ten hundredths
of one (.10%) percent or more. Tenn. Code Ann. § 55-10-401(a)(1), (2) (Supp. 2002).

       With regard to the former theory of prosecution, we find no proof in the record which
demonstrates that the Appellant was under the influence of an intoxicant while driving his vehicle.
The Appellant’s vehicle was stopped by Trooper Norris because of a radio dispatch that the
Appellant was involved in a shooting. The Appellant admitted that he drank two beers; however,
the record is void of any evidence of impaired driving. Moreover, there was nothing from the
Appellant’s appearance or demeanor to indicate that he was under the influence of an intoxicant.
Indeed, Trooper Norris testified that he saw no evidence to indicate that the Appellant was
intoxicated.

        With regard to the later theory of prosecution, the Appellant contends that the evidence was
insufficient to support his so-called per se DUI conviction because there was no expert testimony
to extrapolate the blood test back to the time the Appellant was driving. The Appellant asserts that
the operative word in the DUI statute is the word “while” driving. The proof established that the
period of time between the stop and the blood alcohol test was approximately forty-five minutes.
We would agree that the wording of the statute requires that before a defendant may be convicted




                                                  -6-
of DUI under the per se provision, the proof must establish that the driving occurred while the
person’s blood or breath was ten hundredths of one (.10%) percent or more.2

        Recognizing the tragic consequence to the public inexcusably inflicted by the act of drinking
and driving, in 1996, our General Assembly amended our DUI statute to proscribe the conduct of
driving (or in physical control) of a motor driven vehicle “while . . . [t]he alcohol concentration in
such person’s blood or breath is ten hundredths of one (.10%) percent or more.” Tenn. Code Ann.
§ 55-10-401(a)(2). Thus, the issue in a prosecution for DUI under the per se provisions of section
(a)(2) is not whether the person is “under the influence,” typically a subjective determination, but
whether that person’s blood or breath alcohol concentration while driving was ten hundredths of one
(.10%) percent based upon reliable testing.

         The language of the statute couches the prohibited conduct in terms of driving while the
person’s alcohol concentration is .10% or more. Obviously, the legislature was aware that a
chemical test could not be performed while the person was, in fact, driving his or her vehicle. To
do so would require that the test be performed before the accused was stopped and lawfully seized.
Moreover, we agree with the rationale of the New Hampshire Supreme Court that to require
extrapolation as argued by the Appellant would place an impossible burden upon the State because
(1) evidence with respect to when and in what amounts the Appellant consumed alcohol, which is
necessary for extrapolation, would rarely be available; and (2) the rate of alcohol absorption varies
considerably between individuals and extrapolation evidence is also complicated by the amount of
food consumed at the time the alcohol is injected. State v. Taylor, 566 A.2d 172 (N.H.1989). The
court reasoned that the legislature could not have intended to place such impossible roadblocks in
the way of DUI prosecutions. Because the statute creates both a physical and legal impossibility, we
are required to ascertain the legislative intent of the language, “[I]t is unlawful for any person to
drive . . . while . . . [t]he alcohol concentration in such person’s blood or breath is ten hundredths of
one percent (.10%) or more.” The most basic principle of statutory construction is to ascertain and
give effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). In determining
legislative intent, we look first to the statute itself, and rely, when possible, upon the ordinary
meaning of the language and terms used, refraining from any forced or subtle construction to limit
or extend the statute’s meaning. State v. Smith, 893 S.W.2d 908, 917 (Tenn. 1994), reh’g denied,
(Tenn. 1995), cert. denied, 516 U.S. 829, 116 S. Ct. 99 (1995).

          In construing Virginia’s per se DUI statute,3 the court in Davis v. Commonwealth observed:




          2
              Effective July 1, 2003, the .10% alcohol concentration level will be reduced to .08%.

          3
           Virtually identica l to this state’s D UI statute, Virginia Code Anno tated § 18.2 -266 provides in part tha t it shall
be unlawful for any person to drive or operate any motor vehicle (i) while such person has a blood alcohol concentration
of 0.10 p ercent or more by weight by volume as indicated by a chemical test administered in accordance with the
provisions o f Virginia Co de A nnotated § 18.2 -268 , or (ii) while such p erson is under the influence of alcoho l.

                                                               -7-
        [T]his code section must be interpreted in the context of the factual circumstances in
        which by its very terms is applicable. While the statute proscribes no time limit
        within which the chemical test must be administered after driving, it is axiomatic that
        there can be no prosecution under this statute without the existence of a chemical
        test. . . . Thus, consistent with the factual circumstances in which this Code section
        is applicable . . . this Code section provides the basis for a presumption that the
        blood alcohol concentration while driving was the same as indicated by the results
        of the subsequent test.

Davis, 381 S.E.2d 11, 16 (Va. Ct. App. 1989); accord Haas v. State, 597 So.2d 770 (Fla. 1992);
State v. Taylor,566 A.2d. 172; State v. Kubik, 456 N.W.2d 487 (Neb. 1990); State v. Knoll, 718 P.2d
589 (Idaho Ct. App.), review denied, 776 P.2d 828 (Idaho 1986); State v. Ulrich, 478 N.E.2d 812
(Ohio Ct. App. 1984); State v. Wetzel, 782 P.2d 891 (Haw. Ct. App. 1989); Ransford v. District of
Columbia, 583 A.2d 186 (D.C. 1990); State v. Tischio, 527 A.2d 388 (N.J. 1987), appeal dismissed,
484 U.S. 1038, 108 S. Ct. 768 (1988).

         Adopting the rationale of the above jurisdictions, we interpret this state’s per se DUI statute,
Tennessee Code Annotated § 55-10-401(a)(2), to mean that the subsequently obtained test results
are presumptive evidence of the blood alcohol concentration at the time of driving without the
necessity of extrapolation. Reliable test results obtained within a reasonable time after the accused
motorist is stopped, reflecting a .10% blood alcohol level, standing alone, constitute circumstantial
evidence upon which the fact finder may, but is not required to, convict of per se DUI. Any issue
of unreasonable delay between driving and testing may be considered by the fact finder as going to
the weight to be given the blood or breath test. Moreover, we hold that the accused may challenge
the test results by competent evidence or through the introduction of other evidence to establish that
the test results do not accurately reflect his or her blood alcohol level at the time of driving.

        In this case, the Appellant offered no proof at trial which refuted the accuracy of the .11%
blood alcohol test results. Accordingly, we find the evidence is sufficient to support the Appellant’s
per se conviction for DUI.

                                        IV. DUI Sentencing

       In his final issue, the Appellant contends that his DUI sentence of eleven months and twenty-
nine days in total confinement was excessive. The Appellant’s sentencing argument in its entirety
follows:

               Wilmore Hatfield had been a truck driver for over 30 years and had never
        been convicted or even arrested before for a DUI before.
               The presumptive sentences in these cases are the minimum sentence in the
        range. T.C.A. Section 40-35-210. Although Mr. Hatfield had a prior conviction of
        aggravated assault which he had successfully completed probation, the imposition of
        maximum sentences to serve and denial of probation was in error.


                                                  -8-
       The Appellant fails to provide this court with any legal authority in support of his sentencing
argument. Accordingly, this issue is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b). Nonetheless, in the interests of justice, we elect to review the issue presented.

       When an appellant complains of his sentence on appeal, this court conducts a de novo review
coupled with a presumption that the trial court's sentencing determinations are correct. Tenn. Code
Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, this
presumption is conditioned upon an affirmative showing that the trial court considered the relevant
sentencing principles and all pertinent facts and circumstances. Ashby, 823 S.W.2d at 169.
Regardless of whether the presumption of correctness is applied, the burden of showing the
impropriety of the sentence is on the appealing party. Sentencing Commission Comments, Tenn.
Code Ann. § 40-35-401.

         As previously noted, DUI, first offense, is a class A misdemeanor. Misdemeanor sentencing
is controlled by Tennessee Code Annotated § 40-35-302 (Supp. 2002), which provides in part that
the trial court shall impose a specific sentence consistent with the purposes and principles of the
1989 Criminal Sentencing Reform Act. State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). More
flexibility is extended in misdemeanor sentencing than in felony sentencing. State v. Troutman, 979
S.W.2d 271, 273 (Tenn. 1998).

         Our legislature has provided that a defendant convicted of first offense DUI "shall be
confined . . . for not less than forty-eight hours nor more than eleven months and twenty-nine days."
Tenn. Code Ann. § 55-10-403(a)(1). In effect, the DUI statute mandates a maximum sentence for
a DUI conviction with the only function of the trial court being to determine what period above the
minimum period of incarceration established by statute, if any, is to be suspended. State v. Combs,
945 S.W.2d 770, 774 (Tenn. Crim. App. 1996), perm. to appeal denied, (Tenn. 1997). Thus, the trial
court's imposition of a sentence of eleven months, twenty-nine days is mandated by our legislature
and is not improper.

        The trial court imposed total confinement for the eleven-month, twenty-day sentence; thus,
we are confronted with the question of whether such incarceration is justified based on the principles
of sentencing and the nature and circumstances of the offense. State v. Gilboy, 857 S.W.2d 884, 889
(Tenn. Crim. App. 1993). Although otherwise entitled to the same considerations under the
Sentencing Reform Act as a felon, the misdemeanor offender is not entitled to the presumption of
a minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995) (citation
omitted). Additionally, a misdemeanor sentence, as opposed to a felony sentence, contains no
sentence range. Moreover, the trial court was not required to make explicit findings on the record
as a sentencing hearing is not mandatory. See Tenn. Code Ann. § 40-35-302. Accordingly, in
misdemeanor cases, the trial judge, who is able to observe first-hand the demeanor and responses
of the defendant while testifying must be granted discretion in arriving at the appropriate sentence.

        In the present case, the trial court imposed total confinement, reasoning that:



                                                 -9-
                I have been doing this a long time, but one of the things that is most offensive
        to the Court is to engage in conduct after you have been to court that had a great deal
        of similarity with the conduct that lead to these – this instant offense. You have not
        been found guilty of DUI, but that proof is not contested.4 And you may not be
        guilty, Mr. Hatfield, of DUI, but it sounds like you were drinking and I am not asking
        you to respond – you have got a lawyer to talk to about that. But, you have the option
        to address some of this and you didn’t. I can – I cannot understand how somebody
        would not stop drinking in a situation where they had nearly ended someone’s life.
        And then have the jury give them – I thought you got a very fair day in court. I am
        not commenting on the – I think they did their job. I think the proof was – supported
        that kind of verdict. But then to go back out and engage in half of the conduct that
        lead to that injury, it just – it shocks me. I do think that you are a danger to society.
        I don’t think you should be given an opportunity to – to be in the public, while you
        are behaving that way that you are behaving.

We find that the trial court exceeded the wide latitude of flexibility that is afforded in misdemeanor
sentencing. An arrest or charge is not considered evidence of the commission of a crime. State v.
Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993) (citing State v. Miller, 674 S.W.2d 279,
284 (Tenn. 1984)). A trial court should not use evidence merely showing arrests, without more, to
enhance a sentence. Id. (citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990)).
 The record indicates that the Appellant’s sentence was erroneously enhanced based upon allegations
of unproven criminal conduct. Moreover, upon de novo review, we note that the circumstances of
the DUI offense were not aggravated. No property damage or personal injury resulted from the
commission of this misdemeanor. At .11%, the Appellant was minimally above the blood alcohol
concentration limit. This was the Appellant’s first DUI conviction and, the Appellant cooperated
with the police. According to sentencing principles, the sentence imposed should be justly deserved
in relation to the seriousness of the offense. Tenn. Code Ann. § 40-35-102 (1997). The factors
surrounding the DUI offense lead us to conclude that the Appellant’s eleven-month, twenty-nine-day
sentence should be modified to reflect service of a forty-eight-hour period of incarceration.
Accordingly, the Appellant’s sentence is modified, and the conviction is remanded for entry of a
corrected judgment form consistent with this opinion.

                                              CONCLUSION

       The Appellant’s felony reckless endangerment conviction is reversed because felony reckless
endangerment is not a lesser-included offense of aggravated assault committed by intentionally or
knowingly causing bodily injury to another by use or display of a deadly weapon. Accordingly, the
Appellant’s conviction for felony reckless endangerment is reversed and vacated. Because the DUI
charge given to the jury was proper and because the evidence was sufficient to support the verdict,
the Appellant’s DUI conviction is affirmed. However, total incarceration for his eleven-month,


        4
          No proo f was develo ped at the sentencing hearing with respect to subsequent charges of DU I allegedly
com mitted by the A ppe llant.

                                                      -10-
twenty-nine-day sentence is excessive and is, therefore, modified to require service of forty-eight
hours in the county jail, with the remainder of the sentence suspended. The case is remanded to the
trial court for further proceedings consistent with this opinion.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                               -11-
