        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September10, 2009

           STATE OF TENNESSEE v. DONNA SUE MROZOWSKI

            Direct Appeal from the Circuit Court for Rutherford County
                    No. F-61018    Robert E. Corlew, III, Judge




                 No. M2008-02836-CCA-R3-CD - Filed May 26, 2010


Appellant, Donna Sue Mrozowski, pled nolo contendere to a Class B vehicular homicide
charge stemming from an incident in which she drove her car off a highway, killing a
pedestrian. Appellant and the State agreed to an eight year sentence but left the manner of
service to be determined by the trial court. After a hearing, the court denied Appellant’s
request for alternative sentencing. Appellant now appeals, and we affirm.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH, and
J.C. M CL IN, JJ., joined.

Gilbert L. Anglin (at trial), and Gerald L. Melton (on appeal), Murfreesboro, Tennessee, for
the appellant, Donna Sue Mrozowski.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William Whitesell, District Attorney General; and Thomas E. Parkerson, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                 I. Factual Background
        Appellant was driving her minivan on New Nashville Highway at around 4:00 p.m.
on November 30, 2006.1 Appellant claims that another car drifted into her lane, forcing her
to swerve to avoid it. However, no witnesses saw a second car. Appellant veered off the
road and struck several cars that were parked at a car dealership that lined the highway. The
victim, Richard Scalf, was standing in the lot and was hit by Appellant’s vehicle. He was
killed instantly. An EMT (Emergency Medical Technician) responded to the scene and
treated Appellant. The EMT noted that Appellant was lethargic, had slurred speech, was
difficult to understand, and had an strong odor on her breath. Appellant, who has a history
of alcohol abuse, denied consuming alcohol that day but admitted that she had been drinking
mouthwash and cough medicine. She also told the EMT that she had been prescribed
Lithium. A blood test taken at the hospital did not indicate Appellant had an elevated blood
alcohol content. It did show, however, that Appellant had consumed Dihydrocodeine and
Dihydrocodeinone. The results were consistent with Appellant consuming drugs she had
been prescribed.

       After an investigation into the incident could not corroborate Appellant’s claim that
she was forced off the road by another vehicle, a Rutherford County Grand Jury indicted her
on two counts of vehicular homicide and one count of driving while under the influence of
an intoxicant, third offense. Pursuant to a plea agreement, Appellant pled nolo contendere
to one count of Class B vehicular homicide and the State dismissed the remaining counts.
The parties agreed that Appellant’s sentence should be eight years, and a hearing was held
in order for the trial court to rule on Appellant’s request for alternative sentencing.

        The State called six witnesses at the sentencing hearing. The first, Sergeant Andrew
Miller, who had been with the Smyrna Police Department since 1996, was the lead
investigator in the case. Sergeant Miller testified that he arrived at the scene of the accident
around 4:00 p.m. in response to multiple 911 calls regarding a severe accident. At the scene,
Sergeant Miller found a minivan in the parking lot next to a car dealership. Sergeant Miller
also found that the victim, a pedestrian who had been shopping for a car to purchase for his
son as a Christmas present, had been hit by the minivan. The minivan had traveled
approximately 200 feet from the time it crossed the fog line until it hit the first car in the lot.
It made “glancing blows” to several parked vehicles and then hit the victim. In all, the
minivan hit approximately ten cars; some suffered only minor damage, others were totaled.
It continued for about another 40 feet after it hit the victim, pinning him to the hood until the
minivan struck another car and he was thrown off. In total, the victim traveled more than 141
feet from the spot where the minivan first hit him until he finally came to rest. The victim
was dead when Sergeant Miller arrived.



       1
           New Nashville Highway is also known as Murfreesboro Road and Route 101.

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        Based upon Appellant’s account of the incident, Sergeant Miller began to investigate
the case as a hit-and-run. The police looked for the vehicle that Appellant said came into her
lane and forced her off the road. Because the accident occurred around rush hour, there were
multiple witnesses. Several witnesses saw the minivan leave the highway and strike the other
cars and the victim. None of them saw the second vehicle. Furthermore, Sergeant Miller
testified, the physical evidence did not comport with Appellant’s hit-and-run version of
events. In particular, he explained that the skid marks did not indicate that Appellant had
been run off the road.

       The investigation then focused on Appellant. Sergeant Miller testified that the
Tennessee Bureau of Investigation conducted an analysis of Appellant’s blood. Although
it did not reveal that Appellant had alcohol in her blood, it did reveal the presence of
Dihydrocodeine and Dihydrocodeinone. While Sergeant Miller did not know the appropriate
medicinal levels for those substances, he testified that the tests showed Appellant had
“impairment” levels in her blood.

       The State next called Shawn Tyson, an officer with the Metro-Nashville Police
Department who at the time was an EMT-IV for the Rutherford County Emergency Medical
Service. Officer Tyson’s unit was the first on the scene after the accident, and he testified
that the victim was dead upon their arrival. Officer Tyson testified that Appellant had no
major external injuries. He described Appellant as “slow to respond” and “kind of
confused.” He also noted that she had a “strong odor on her breath of . . . a mouthwash or
something of that type.” Appellant told Officer Tyson that she swerved to miss a vehicle and
that she was not aware of what she had hit. She denied that she had lost consciousness and
denied using alcohol. However, she told Officer Tyson that she had been drinking
mouthwash and cough medicine throughout the day and that she had been prescribed
Lithium. Officer Tyson testified that Appellant had slurred speech that was difficult to
understand and that she was lethargic and hard to arouse at times.

       Officer Tyson testified that, although Appellant’s symptoms could result from a
trauma, he did not believe they were caused by a trauma in this case. He noted that
Appellant was wearing her seatbelt, which would have prevented severe trauma. She had no
obvious external injuries. The steering wheel had no deformities, and the damage to the
windshield came from the outside, not the inside. In short, the evidence did not suggest that
Appellant suffered a physical trauma. Instead, Officer Tyson believed that Appellant was
intoxicated. He explained that Appellant’s lethergy and slurred speech were signs of
intoxication. Her conduct was “consistent with a person who appears impaired,” not
someone who had been in an accident. He testified that Appellant’s statements that she had
been drinking mouthwash and cough syrup “all day,” and the fact that she smelled of a
“strong odor” like mouthwash, further supported the conclusion that Appellant was impaired.

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       The State also called Merilynn Raney, an employee of the Tennessee Board of
Probation and Parole. Ms. Raney prepared the appellant’s presentence investigation report.
That report notes that Appellant, who was 58 years old at the time of the accident, had two
prior DUI convictions for offenses that occurred in 1996 and 2000.

       The State then called three of the victim’s family members. All three testified about
the devastating effect the victim’s death had on them individually and the family as a whole.
They also uniformly requested Appellant serve a long jail sentence.

       Appellant testified as the first of six witnesses for the defense. She began with her
version of the events. She testified that a blue van came into her lane and forced her off the
road. She also testified that she did not know that she had hit the victim until she was in the
emergency room.

        Appellant then described her extensive medical problems. At the time of the accident,
Appellant was being treated for cirrhosis of the liver, fibromyalgia, and Hepatitis C. She
suffers from deteriorating disc disease, has a bulging disc in her back, and has arthritis. She
also testified that she had been diagnosed as bipolar and as a paranoid schizophrenic. She
had been taking Percocet and Lortab at the time of the accident, but she took them within the
prescribed limits. Appellant explained that she had been taking Percocet for about four years
and that she was aware of the physical limitations the drug imposed upon her. She further
testified that none of her physicians warned her against driving while taking these
medications. Appellant acknowledged that she told the EMT that she was taking Lithium
and that she did not tell either the EMT or the medical personnel at the emergency room that
she had been taking Percocet or Lortab. Although she had long blamed the driver of the
vehicle that forced her off the road, in the statement she gave to the probation office in
preparation for the presentence report, she wrote that “[i]n hindsight, [she had] come to
believe that [her] medication probably did affect [her] driving.”

       Appellant acknowledged that she had a history of alcohol abuse. She admitted to
having prior DUIs. She said that she had been to alcohol rehabilitation facilities three or four
times and that she stopped drinking in 2002. Appellant also admitted that she had an
addiction to pain medications, although she denied that she abused them.

       Appellant testified that she had been institutionalized three times since the accident.
She was currently being treated by four doctors and was on multiple medications. She was,
in her words, “totally disabled.”

       Appellant described herself as “a very spiritual woman” who would “never, never ever
hurt anybody, ever.” She testified that she wanted the victim’s family to see her to

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understand that she was “not unremorseful.” In addition, Appellant testified that, since the
accident, she had “seen” the victim approximately six times.

      Finally, Appellant testified that she believed her sentence should be suspended
because the victim’s death was an accident and she did not mean to hurt anyone.

       The defense next called Appellant’s husband, Victor Mrozowski. He testified that
Appellant was a “tenderhearted” woman, but that she was “losing her mind.” He described
the terrible impact the accident had on Appellant and her family. He also noted that
Appellant had attempted suicide.

        Appellant’s pastor, Richard Radford, also testified about the impact the accident had
on Appellant. He noted that she was a “spiritual woman” and that she had significant
emotional problems. However, he testified that he did not believe Appellant would be a
threat to society if she were free.

       Barbara Owens, Appellant’s cousin, testified that Appellant was a caring, thoughtful,
and kind person who would not hurt anyone. She further testified about the traumatic effect
the accident had on Appellant and said that the appellant would not be risk to society if given
a non-custodial sentence.

        Appellant’s close friend, Evelyn Sue Smith, testified that she had lunch with
Appellant on the day of the accident. She described Appellant as “fine” and her typical self.
Ms. Smith also encountered the scene just after the accident occurred. She testified that
Appellant told her that she was forced off the road by another vehicle. In addition, Ms.
Smith testified that Appellant appeared “out of it.” Ms. Smith explained that Appellant
appeared that way because of the accident, not because she was impaired. Finally, Ms. Smith
testified that Appellant was an honest and caring person and that the accident had a major
emotional impact on her.

       Finally, Appellant’s sister, Brenda Gray, also described Appellant as a caring and kind
individual. She also testified about the impact the accident had on Appellant.

       At the close of evidence, the State argued that Appellant had failed to meet her burden
to prove alternative sentencing was appropriate. It listed several enhancement factors under
Tennessee Code Annotated section 40-35-114 that it asserted counseled against alternative
sentencing. It further contended that there were no mitigating factors. In the State’s view,
Appellant’s impaired driving, despite her previous DUIs and her social history of emotional,
psychiatric, and physical problems indicated that alternative sentencing was not appropriate.



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       In response, the defense argued that Appellant did not pose a threat to society. It
noted that she did not have a long, detailed criminal history. It further noted that the
intoxicants in Appellant’s system were prescription drugs and that they were present in levels
consistent with the prescribed limits. It also reiterated Appellant’s position that she was run
off the road by another driver. Moreover, the defense argued that an alternative sentence
would not depreciate the seriousness of this offense because Appellant would have a felony
conviction and would continue to be emotionally devastated by her actions. Finally, the
defense contended that prior less restrictive measures had been successful, citing Appellant’s
2002 alcohol rehabilitation treatment.

       At the close of the hearing the trial court denied Appellant’s request for alternative
sentencing. The court listed the factors and circumstances it considered in arriving at its
decision. In particular, the court noted that Appellant had two prior DUI convictions.
Furthermore, the court noted that there were both enhancing and mitigating factors, which
counseled both for and against suspending Appellant’s sentence. However, the court
concluded that, on balance, its duty was to impose a custodial sentence.

                                        II. Analysis

        Appellate review of the manner of service of a sentence is de novo. See Tenn. Code
Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on Appellant to demonstrate the impropriety of her sentence. See Tenn. Code Ann.
§ 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the
trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

       The Sentencing Reform Act of 1989 encourages judges to utilize non-incarceration
sentencing alternatives. See Tenn. Code Ann. § 40-35-103(6); see also State v. Ring, 56
S.W.3d 577, 584 (Tenn. Crim. App. 2001). But the Act also provides that certain offenders
should be considered “favorable candidate[s] for alternative sentencing.” Tenn. Code Ann.
§ 40-35-102(6). Because Appellant is a Class B offender, she is not among those “favorable

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candidate[s].” Id. Nonetheless, a sentence involving incarceration should be based upon the
following:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;
       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). The trial court may also consider the applicable mitigating
and enhancing factors under sections 113 and 114 as well as “the potential or lack of
potential for rehabilitation in determining whether incarceration is appropriate.” See State
v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996); see also Tenn. Code Ann. § 40-35-
103(5).

       Upon our review of the record, we conclude that the trial court properly denied
alternative sentencing. We are particularly troubled by the fact that Appellant has twice been
convicted of DUI and the instant offense is a vehicular homicide resulting from Appellant’s
use of intoxicants. We appreciate that Appellant’s intoxication in this case was not caused
by alcohol consumption and that she claims to have ceased drinking alcohol entirely.2
However, we are unable to overlook the fact that the instant offense occurred as a result of
appellant’s intoxication. We further note that Appellant was not given full custodial
sentences for her prior convictions. In that sense, “[m]easures less restrictive than
confinement have . . . recently been applied unsuccessfully” to Appellant. Tenn. Code Ann.
§ 40-35-103(1)(C).

       As the trial court recognized, there may be mitigating circumstances counseling in
favor of alternative sentencing. If nothing else, the record supports the trial court’s finding
that Appellant is remorseful, which can be a mitigating factor under the catch-all provision.
See Tenn. Code Ann. § 40-35-113(13). In addition, Appellant has consistently maintained
she had only taken drugs prescribed, that she had only taken them in the prescribed doses,
and that she did not believe she was impaired. She has also consistently maintained that she
was forced off the road by another driver. These points might support mitigation under
Tennessee Code sections 40-35-113(3) and (11), although the points about her medication
do not fit within section 113(8). See Tenn. Code Ann. § 40-35-113(8) (providing that “the

       2
          We note, however, that the record contains strong evidence that at the time of the accident
Appellant was drinking mouthwash and cough syrup excessively.

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voluntary use of intoxicants does not fall within the purview of this factor”). Appellant also
pointed to her apparently successful alcohol rehabilitation and her evident emotional and
psychological breakdown to suggest that she needs, and can be responsive to, treatment.

        On balance, we conclude, as did the trial court, that the powerful considerations
favoring incarceration outweigh those favoring alternative sentencing. Appellant has a track
record of substance abuse and driving while impaired. Tragically, this combination led to
the victim’s death. While Appellant may be genuinely remorseful and may not have believed
she was doing anything wrong at the time, that alone does not entitled her to alternative
sentencing. The trial court weighed all of the facts and circumstances and concluded
alternative sentencing was not appropriate. Our own review of the record leads us to agree.

                                      III. Conclusion

       Based upon our review of the record, we affirm the judgment of the trial court.




                                                   ___________________________________
                                                   NORMA McGEE OGLE, JUDGE




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