         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 22, 2003 Session

             STATE OF TENNESSEE v. MELISSA A. MELLINGER

                  Direct Appeal from the Criminal Court for Wilson County
                    Nos. 00-1385, 00-1386   John D. Wootten, Jr., Judge



                  No. M2002-01029-CCA-R3-CD - Filed December 10, 2003


The appellant, Melissa A. Mellinger, was convicted by a jury in the Wilson County Criminal Court
of two counts of first offense driving under the influence (DUI), Class A misdemeanors. The trial
court merged the convictions, imposed a three hundred fifty dollar ($350) fine, and sentenced the
appellant to eleven months and twenty-nine days to be suspended upon serving two hundred seventy-
three (273) days in the county jail. The trial court also suspended the appellant’s driver’s license for
one year. On appeal, the appellant argues that the sentence imposed by the trial court was excessive.
Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Lance B. Mayes and M. Don Himmelberg, Nashville, Tennessee, for the appellant, Melissa A.
Mellinger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Howard Lee Chambers, District Attorney General Pro Tem; and Jerry D. Hunt, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        On June 13, 2000, the Wilson County Grand Jury returned an indictment charging the
appellant with two counts of vehicular assault. At trial, Chisa Tipton, who was sixteen at the time
of the offense, testified that on February 28, 2000, the nineteen-year-old appellant asked her if she
would like to accompany her to a party in Lebanon, Tennessee. Tipton responded that she would
like to go to the party and the girls left around 6:00 p.m. that evening. On the way to the party, the
appellant stopped at a liquor store in Nashville and paid a man twenty dollars to buy her a bottle of
gin. After the man purchased the bottle of gin, the appellant and Tipton proceeded to the party.
When they arrived at the party, the appellant took the bottle of gin and went into a room with one
of her friends. Tipton testified that when the appellant entered the room, the bottle of gin was full,
but when the appellant exited the room thirty minutes later, the bottle was no longer full. Shortly
thereafter, the appellant and Tipton left the party.

         Tipton testified that on the way home from the party, the appellant stopped at a Krystal’s
Restaurant and purchased a large soft drink to which she added gin. Thereafter, the appellant
became lost and decided to stop and ask for directions. After stopping at a gas station, the appellant
pulled onto Highway 70. At trial, Tipton related that there was “a lot of traffic on the road.” Tipton
testified that she was also concerned because the appellant was acting “a little bit drunk” and driving
at speeds of ninety to one hundred miles per hour.

         Tipton testified that while driving on Highway 70, the appellant pulled into the “oncoming
traffic lane.” Tipton stated that she saw “cars . . . coming right towards us and I blacked out.” When
she regained consciousness, Tipton got out of the appellant’s vehicle, not realizing she had been
injured. Tipton observed that the front sections of the appellant’s vehicle and another vehicle were
“smashed” and the appellant and the other driver were trapped inside their vehicles. Thereafter,
“rescue” arrived and transported Tipton to the hospital. Tipton sustained lacerations to both legs,
which lacerations required stitches.

        Margaret Partee was the driver of the vehicle struck by the appellant’s vehicle. At trial,
Partee testified that her only recollection of the collision was that at approximately 7:00 p.m. on
February 28, 2000, she was driving on Highway 70 when she saw “two headlights coming at [her]
in [her] lane of traffic.” As a result of her collision with the appellant’s vehicle, Partee suffered
numerous injuries. Both of her legs were placed in casts up to her knees, she suffered lacerations
across both knees which required stitches, her left heel had to be completely reconstructed, and she
had to have a long rod placed in her right thigh. As a result of these injuries, Partee was temporarily
disabled. Following a five week stay in the hospital, Partee had to live with her daughter for two
months, after which she was able to return to her own home. However, because Partee was confined
to a wheelchair, a friend had to move into her home for several months to care for her. Moreover,
because Partee was unable to return to work for a long period of time, the law firm she worked for
was forced to hire someone else. Although the firm offered her a “secondary job,” Partee retired
shortly after returning to work. Partee testified at trial, “I’m not 100% normal yet and possibly never
will be.”

        At trial, Lebanon Police Officer Michael Wentzell testified that on February 28, 2000, he
responded to a call regarding a two car collision on Highway 70. Upon arrival, Officer Wentzell
observed the two vehicles, both of which had sustained substantial damage. Both Partee and the
appellant were trapped in the driver’s seat of their vehicle. According to Officer Wentzell, the
appellant was “screaming and yelling” and appeared to be in a great deal of pain. Officer Wentzell
related that he smelled alcohol on her breath. Officer Wentzell testified that when he was clearing



                                                 -2-
the scene, he discovered a bottle of Seagram’s gin between the console and the driver’s seat of the
appellant’s vehicle.

        Tim Crabtree, an emergency medical technician, responded to the collision and treated the
appellant at the scene. He testified at trial that the appellant had “a fruity odor about her breath.”
Crabtree related that a fruity odor of the breath indicated the presence of alcohol. Crabtree further
stated that the appellant’s speech was slurred and she was combative.

         At trial, Nouri Raaipour, a medical technician in the laboratory at Vanderbilt Hospital,
testified that on February 28, 2000, he received a specimen of blood with the appellant’s name on
it. Raaipour testified that he analyzed the blood in accordance with hospital procedure. On cross-
examination, Raaipour acknowledged that he had not seen the blood drawn from the appellant.
Moreover, neither the police nor the Tennessee Bureau of Investigations had requested that he
preserve the sample of blood.

        Dr. Steven White treated the appellant upon her arrival at Vanderbilt University Medical
Center. Dr. White testified that the appellant “was brought in by helicopter. . . . And she was
combative and profane. And she appeared to be intoxicated.” Although Dr. White could not recall
who took the appellant’s blood or how the blood was drawn, he testified that he did, in fact, “order[]
a blood sample to be analyzed for alcohol content.” Dr. White related that pursuant to protocol,
numerous tests were conducted on the appellant’s blood, including toxicology screens and tests to
determine blood alcohol content. Dr. White testified that the results returned from the laboratory
established that the appellant had a blood alcohol content of “295 milligrams per deciliter.”
Regarding the extent of the appellant’s intoxication, Dr. White explained,
               I would not [allow a patient] to leave an emergency room with .295.
               If they were driving they would be restrained and kept from leaving.
               I would immediately report it to the police.

        At the conclusion of the proof, a jury convicted the appellant of two counts of the lesser-
included offense of driving under the influence, first offense. The trial court subsequently held a
sentencing hearing. At the conclusion of the sentencing hearing, the trial court merged the
convictions, imposed a three hundred fifty dollar ($350) fine, and sentenced the appellant to eleven
months and twenty-nine days to be suspended upon serving two hundred seventy-three (273) days
in the county jail.1 The trial court also suspended the appellant’s driver’s license for one year. The
appellant timely appealed.




         1
           W e note that the requirement that the appellant serve two hundred seventy-three (273) days in the county ja il
does not ba r the ap pellant from earning good conduc t credits towards the jail time. State v. Clark, 67 S.W.3d 73, 78
(Tenn. Crim. App. 200 1).

                                                           -3-
                                                   II. Analysis

        On appeal, the appellant argues that the sentence imposed by the trial court was excessive.
Specifically, the appellant contends that “the nature of [her] conduct did not warrant the severity of
the punishment.” The appellant further contends that the trial court misapplied the enhancement
factors used to increase the percentage of her sentence to be served in confinement.

         When an appellant challenges the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). Generally, the presumption of
correctness is “conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). However, the trial court has more flexibility in misdemeanor sentencing than in
felony sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citing State v.
Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). In misdemeanor sentencing, the “trial court need
only consider the principles of sentencing and enhancement and mitigating factors in order to comply
with the legislative mandates of the misdemeanor sentencing statute.” Troutman, 979 S.W.2d at
274. The burden of showing that a sentence was improper is on the appellant. Tenn. Code Ann. §
40-35-401, Sentencing Commission Comments.

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302(b)
(Supp. 2002), which provides in pertinent part that the trial court shall impose a specific sentence
consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See also
State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). Unlike a defendant convicted of a felony, a
defendant convicted of a misdemeanor is not entitled to a presumptive minimum sentence. Johnson,
15 S.W.3d at 518 (citing State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997)). Rather,
in sentencing the misdemeanor defendant, the trial court shall fix a percentage of the sentence that
the defendant must serve in confinement before being eligible for release into rehabilitative
programs.2 Tenn. Code Ann. § 40-35-302(d). The trial court shall consider the sentencing principles
and enhancement and mitigating factors in determining the percentage to be served and “shall not
impose such percentages arbitrarily.” Tenn. Code Ann. § 40-35-302(d); see also Troutman, 979
S.W.2d at 274.

        In the instant case, the appellant was convicted of DUI, first offense, a Class A misdemeanor.
Tenn. Code Ann. § 55-10-403(a)(1) (2000). A person convicted of a first offense DUI “shall be
confined in the county jail or workhouse for not less than forty-eight (48) hours nor more than eleven
(11) months and twenty-nine (29) days.” Id. However, if the offender’s blood alcohol content was
greater than .20 percent, the minimum period of incarceration increases to seven days. Id.; see also
State v. Helen Dixon Devers, No. M1999-00427-CCA-R3-CD, 2000 Tenn Crim. App. LEXIS 501,
at *10 (Nashville, June 23, 2000). In effect, the DUI statute mandates a maximum sentence, with


         2
            In the instant case, the percentage of service is seven ty-five percent (75%), which coincides with the two
hund red se venty-three (27 3) days of co nfinement ord ered by the trial court.

                                                         -4-
the only function of the trial court being to determine what period above the minimum period of
confinement is to be suspended. State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).
Moreover, unlike general misdemeanor sentencing in which a trial court is not permitted to require
confinement in excess of seventy-five percent (75%), a trial court is authorized to require a DUI
offender to serve one hundred percent (100%) of her sentence in confinement. State v. Allen
Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 961, at *28
(Knoxville, Nov. 1, 2002) (citing State v. Palmer, 902 S.W.2d 391, 393-94 (Tenn. 1995)).

        In sentencing the appellant, the trial court considered the evidence presented at trial, the
presentence report, the testimony of the witnesses at the sentencing hearing, and the arguments of
counsel. At the sentencing hearing, Betsy Jakalski, the probation officer who prepared the
appellant’s presentence report, testified that the appellant had no prior convictions, but had
previously been granted pretrial diversion in Davidson County on charges of vandalism, resisting
stop and frisk, possession of alcohol by an individual under twenty-one years of age, public
intoxication, and disorderly conduct. Jakalski testified that the appellant informed her that she had
consumed alcohol on few occasions and had been drunk only “a couple of times.” Jakalski stated
that since the presentence interview, the appellant had moved to Robertson County to live with her
father. Jakalski further testified that the appellant had worked at the Old Country Buffet for four
years, but had abandoned the job a week prior to the presentence interview.

         Margaret Partee also testified at the sentencing hearing, reading her victim impact statement
into the record. Partee’s testimony regarding the injuries sustained as a result of the collision
mirrored her testimony at trial, but in greater detail. She related that it took the rescue team two
hours “to cut me out of my car.” Partee further testified that before the accident she had visited her
eighty-seven-year-old mother once a week, but after the accident she saw her mother only a few
times before her death in December 2000. Partee explained that as a result of the collision, she had
suffered a great deal of pain, had been unable to participate in many special events, including
vacations, and had missed a significant amount of work prior to retirement. Moreover, she related
that her “brand new 2000 car, that [she]’d had for barely a month was demolished.” Partee further
testified that the appellant had not apologized or expressed any remorse for her actions. Partee urged
the trial court to impose “the maximum confinement time.”

        The appellant testified on her own behalf at the sentencing hearing, stating that at the time
of the accident she was nineteen years old and did not have “a lot of experience with alcohol.” She
related that her criminal history consisted of one speeding ticket and the aforementioned pretrial
diversion. The appellant testified that she was “sorry for what happened” and that she had not
consumed alcohol since the accident. The appellant explained that at the time of the accident she
was attending Volunteer State Community College, but she was forced to drop out as a result of her
injuries. According to the appellant, she abandoned her job at the Old Country Buffet because she
no longer owned a vehicle. The appellant testified that if the trial court did not sentence her to a
period of confinement, she would return to work full-time and pursue her “marketing degree” at
Volunteer State Community College.



                                                 -5-
         Thereafter, the trial court questioned the appellant regarding the Davidson County charges
for which she received pretrial diversion. The appellant conceded that she consumed beer while a
minor, thus leading to the underlying public intoxication charge giving rise to pretrial diversion. The
trial court noted that the appellant was placed on pretrial diversion in August of 1999. The trial court
then noted that the appellant was indicted in the instant case in June 2000, less than a year after being
placed on pretrial diversion. The appellant explained that her pretrial diversion was not revoked
because the probation officer monitoring her diversion was not advised that she had been charged
for the instant offenses. However, the appellant acknowledged that the probation officer had advised
her that while on pretrial diversion she was not to violate the law. The appellant also conceded that
she knew she was violating the law when, on the night of the instant offense, she asked another
person to buy her a bottle of gin and drank the gin despite being underage.

        The trial court correctly noted that, because the appellant’s blood alcohol content was greater
than .20 percent, the mandatory minimum period of confinement was seven days. See Tenn. Code
Ann. 55-10-403(a)(1). The trial court then considered the enhancement and mitigating factors to
determine the portion of the sentence the appellant should serve in confinement before being eligible
for release on probation. The trial court applied the following enhancement factors:
                (1) The appellant has a previous history of criminal convictions or
                criminal behavior;
                (3) The offense involved more than one victim;
                (6) The personal injuries inflicted upon or the amount of damage to
                property sustained by the victim was particularly great;
                (10) The appellant had no hesitation about committing a crime when
                the risk to human life was high; and
                (16) The crime was committed under circumstances under which the
                potential for bodily injury to a victim was great.
Tenn. Code Ann. § 40-35-114 (1997).3 Regarding mitigating factors, the trial court took into
consideration the appellant’s youth and the fact that the appellant made “some effort . . . to
compensate the victim.” See Tenn. Code Ann. § 40-35-113(5), (6) (1997).

         On appeal, the appellant first asserts that the trial court erred in applying enhancement factor
(1), i.e., the appellant has a previous history of criminal convictions or criminal behavior. Tenn.
Code Ann. § 40-35-114(1) (1997). The appellant contends that “the State only had a charge in which
the [appellant] . . . was granted pretrial diversion. There were no other charges on the [appellant’s]
record.” However, we note that this court has previously concluded that the criminal acts for which
a defendant receives diversion can be considered as prior criminal behavior under enhancement
factor (1). State v. Kelley, 34 S.W.3d 471, 481 (Tenn. Crim. App. 2000). Here, the appellant
conceded that she consumed beer while a minor, which led to the pretrial diversion. Accordingly,


        3
            We note that, beginning July 4, 2002, “the 2002 amendment [to Tennessee Code Annotated section 40-35-
114] added present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23),
respe ctively.” Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Ho wever, for the purposes of this opinion,
we will use the former designations applicable at the time of the appellant’s sentencing.

                                                      -6-
the trial court was allowed to consider the charge for which the appellant received pretrial diversion
when determining the amount of the appellant’s sentence to be served in confinement.

        Next, the appellant contends that the trial court erred in applying enhancement factor (3), i.e.,
the offense involved more than one victim. Tenn. Code Ann. § 40-35-114(3) (1997). On appeal,
the appellant correctly asserts that enhancement factor (3) may not be applied to enhance a sentence
where a defendant is separately convicted of the offenses committed against each victim. State v.
Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). In the instant case, the appellant was
charged in a two count indictment with the vehicular assault of Margaret Partee and Chisa Tipton.
However, the appellant was convicted of the lesser-included offense of DUI. Nevertheless, the jury’s
acquittal of vehicular assault does not preclude the trial court from applying this enhancement factor
and concluding that the DUI offense led to injuries. See State v. Winfield, 23 S.W.3d 279, 284
(Tenn. 2000). This court has previously concluded that DUI is a crime lacking a named victim.
State v. Brenda F. Jones, No. W2002-00751-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 660, at
*14 (Jackson, July 29, 2003). Therefore, we conclude that the trial court correctly applied
enhancement factor (3). As we have noted, both Partee and Tipton were injured as a result of the
appellant’s driving under the influence, and Partee’s vehicle sustained excessive damage.

        The appellant also challenges the trial court’s application of enhancement factor (6), i.e., the
personal injuries inflicted upon or the amount of damage to property sustained by the victim was
particularly great. Tenn. Code Ann. § 40-35-114(6) (1997). Citing State v. Williamson, 919 S.W.2d
69, 82 (Tenn. Crim. App. 1995), the appellant contends that, “because the personal injuries suffered
by the victim[s] were an element of the offense of vehicular assault, . . . enhancement factor [(6)]
can not be applied.” However, as previously noted, in the instant case the appellant was convicted
of DUI, not vehicular assault. “Personal injury” is not an element of DUI. See Tenn. Code Ann. §
55-10-401 (2000). Based upon the testimony at trial and at sentencing regarding the destruction to
Margaret Partee’s new vehicle and the extensive injuries sustained by Partee and Chisa Tipton, we
conclude that the trial court appropriately applied enhancement factor (6).

         Next, the appellant contends that the trial court erred in applying enhancement factor (10),
i.e., the appellant had no hesitation about committing a crime when the risk to human life was high.
Tenn. Code Ann. § 40-35-114(10) (1997). Enhancement factor (10) may be applied where the
appellant creates a high risk to the life of a person other than the victim. State v. Bingham, 910
S.W.2d 448, 452 (Tenn. Crim. App. 1995). However, proof must exist “that other persons or
motorists were either in the vicinity or placed at risk by [the appellant’s] conduct.” State v. Janice
Carol Biskner, No. E2000-01440-CCA-R3-CD, 2001 Tenn. Crim. App LEXIS 887, at **39-40
(Knoxville, Nov. 13, 2001). The appellant asserts that “[t]here was no testimony at trial which stated
that the [appellant] endangered any other person on the roadway.” We disagree. At trial, Chisa
Tipton testified that she became concerned when the appellant pulled onto Highway 70 because there
was “a lot of traffic on the road.” Tipton further related that the appellant subsequently drove her
vehicle into oncoming traffic. Based upon these facts, we conclude that the trial court properly
applied enhancement factor (10).



                                                  -7-
         Finally, the appellant contends that the trial court erred in applying enhancement factor (16),
i.e., the crime was committed under circumstances under which the potential for bodily injury to a
victim was great. Tenn. Code Ann. § 40-35-114(16) (1997). The appellant argues that “[s]ince
serious bodily injury is an essential element of vehicular assault, enhancement factor (16) may not
be applied.” However, as previously noted, the appellant was convicted of DUI, not vehicular
assault. See Tenn. Code Ann. § 55-10-401. This court has previously observed that, if supported
by the facts and circumstances of the case, enhancement factor (16) may be applied to enhance a DUI
sentence.4 See State v. Terry L. Byington, No. 03C01-9711-CC-00488, 1998 Tenn. Crim. App.
LEXIS 1162, at **9-10 (Knoxville, Nov. 12, 1998); State v. Virginia Ailene Gann, No. 01C01-9704-
CC-00164, 1998 Tenn. Crim. App. LEXIS 581, at *21 (Nashville, May 27, 1998). Clearly, under
the circumstances in the instant case, the potential for bodily injury was great. The appellant’s
conduct resulted in a head-on collision in which both the driver of the other vehicle and the
passenger in the appellant’s vehicle were seriously injured. Accordingly, we conclude that there was
no error in the trial court’s application of enhancement factor (16).

                                                  III. Conclusion

         Based upon the foregoing, we affirm the judgment of the trial court




                                                                 ___________________________________
                                                                 NORMA McGEE OGLE, JUDGE




         4
            This court has previously rejected “the proposition that driving under the influence . . . do[es] not cause or
threaten serious bodily injury.” Virginia Ailene Gann, 1998 Tenn. Crim. App. LEXIS 581, at *22.

                                                           -8-
