              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                              FILED
                                                                            March 7, 2000
                             JANUARY 2000 SESSION
                                                                          Cecil Crowson, Jr.
                                                                         Appellate Court Clerk


STATE OF TENNESSEE,                )
                                   )
              Appellee,            )      No. E1999-00551-CCA-R3-CD
                                   )
                                   )      Hawkins County
v.                                 )
                                   )      Honorable James E. Beckner, Judge
                                   )
BRIAN R. WATERS,                   )      (Driving under the influence of an intoxicant,
                                   )      third offense)
                                   )
              Appellant.           )


For the Appellant:                        For the Appellee:

Greg W. Eichelman                         Paul G. Summers
District Public Defender                  Attorney General of Tennessee
1609 College Park Drive                          and
Box 11                                    Clinton J. Morgan
Dandridge, TN 37725-0416                  Counsel for the State
        and                               425 Fifth Avenue North
R. Russell Mattocks                       Nashville, TN 37243
Assistant Public Defender
203 Washington Street, Suite H            C. Berkeley Bell, Jr.
Rogersville, TN 37857                     District Attorney General
                                          109 South Main Street, Suite 501
                                          Greeneville, TN 37743
                                                   and
                                          John Douglas Godbee
                                          Assistant District Attorney General
                                          100 East Main Street, Suite 201
                                          Rogersville, TN 37857




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge


                                       OPINION



              The defendant, Brian R. Waters, appeals as of right from his conviction

following a jury trial in the Hawkins County Criminal Court for driving under the influence
of an intoxicant (DUI), third offense, a Class A misdemeanor.1 The defendant was
sentenced to eleven months, twenty-nine days of confinement in the county jail, to be

served at seventy-five percent. He was fined two thousand nine hundred ten dollars.
The defendant contends that (1) the evidence is insufficient to support his convictions,

and (2) the trial court erred by sentencing him to more than the statutory minimum

amount of confinement. We affirm the judgment of conviction.


                Travis Chappell, a patrolman with the Church Hill Police Department,

testified that on February 10, 1999, he was using his radar to check for speeding on
North Central Avenue. He said his radar detected the defendant driving at forty-five

miles per hour in a thirty-mile-per-hour zone. He said he pulled behind the defendant’s

car and noticed that the car was weaving, moving from one side of the shoulder to
across the middle lines three or four times. He said he activated his blue lights and

stopped the defendant.



                Officer Chappell testified that two other men were in the car with the

defendant. He said he noticed an odor of alcohol when the defendant rolled down his

window. Officer Chappell said he asked the defendant for his license, but the

defendant said he did not have it. He said that the defendant’s eyes were bloodshot

and glassy and that the defendant was slow to respond to his questions. He stated that
he asked the defendant to step outside the car and that the defendant was unsteady

and had to lean on the car to stand. He said that when he asked the defendant if he

had been drinking, the defendant replied that he had consumed six or seven beers.


                Officer Chappell testified that he asked the defendant to perform a variety

of field sobriety tests. He said he asked the defendant to touch his finger to his nose,
but he missed and touched his lips. He said he asked the defendant to raise one foot

off the ground, but he could not do it and fell into the car. He said that although the

defendant had previously denied having any medical problems, the defendant then said

that medical problems prevented him from performing the balancing test. Officer
Chappell said the defendant could not count to four on his fingers and could not follow


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         The defendant was also convicted of driving on a revoked license, second offense, but he does
not c hallen ge th is con viction on ap pea l.

                                                    2
his instructions to recite the alphabet beginning with “D” and ending with “N.” Officer

Chappell said he determined that the defendant was under the influence and arrested

him. He said that at the jail, the defendant refused to consent to a breathalyzer or
blood alcohol test.



              Reggie Evans testified that at the time of the offense, he was a reserve
officer with the Church Hill Police Department. He testified that he was riding with

Officer Chappell when he stopped the defendant. He said the defendant staggered,

smelled of alcohol, slurred his speech and had red eyes.


              Geraldine Snow, the defendant’s mother, testified that the defendant was

with her until 7:00 p.m. on the day of the incident. She said that although the defendant
did not consume alcohol in her presence, she did not know what he did after he left.



              Ben Lovin, a friend of the defendant, testified that he and the defendant

drank two to three beers at his house on the night of the incident. He said they went to

Tina Cole’s house around 7:00 p.m. and drank another beer. He testified that his chest

began hurting and that he took a nitroglycerin pill. He explained that he has congestive

heart failure, kidney problems and hepatitis, requiring him to take nitroglycerin and

demerol. He testified that his chest continued to hurt and that he decided to go home.
He said that he was driving, and the defendant and another friend, James Webb, were

passengers. He said he drove about one-half mile but was too sick to continue driving.

He said the defendant put him in the passenger’s seat and began to drive. He said the
defendant was driving to the defendant’s mother’s house when he was stopped. Mr.

Lovin said the defendant consumed a few beers but was not intoxicated. He admitted

that his memory was poor because he had been in a coma for ten days between the
incident and the trial.



              Tina Cole, the defendant’s cousin, testified that when the defendant, Mr.

Lovin, and Mr. Webb came to her house, Mr. Lovin was very sick. She said that Mr.
Lovin took some pills and that the men left after thirty or forty-five minutes. She said

the defendant was not drunk.



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             The defendant testified that he had the flu for a few days before the

offense and that he had taken Nyquil earlier that day. He said his stepfather drove him

to Mr. Lovin’s house where he drank two beers. He said that they went to Ms. Cole’s
house and that he drank one-half of a beer. He said Mr. Lovin began to have chest

pains and took nitroglycerin pills. He said Mr. Lovin then stated that he needed to go

home to get his oxygen. He said that when they left, Mr. Lovin was driving but that he
was in poor condition. He said that Mr. Lovin had to stop the car and that he had to

drive. The defendant said that he was driving to his mother’s house in order for her to

take Mr. Lovin to the hospital and that he was stopped by the police three hundred feet
from the house.



             The defendant testified that he told Officer Chappell that he could not
stand on one foot or walk a straight line because he had worn leg braces. He said he

performed well on the field sobriety tests. He said he told Officer Chappell that he had

consumed two and one-half beers, not seven. He said he refused to take the

breathalyzer test because he had been taking topical medication for his teeth and had

taken Nyquil earlier that day. He said he agreed to take a blood alcohol test but was

told that a blood test was not an option. He agreed that he had signed a health sheet at

the jail in which he agreed that he was not taking any medication. He testified that he

believed “medication” meant heart or blood pressure medication. Upon the foregoing
evidence, the jury convicted the defendant of DUI.



                         I. SUFFICIENCY OF THE EVIDENCE
             The defendant contends that the evidence is insufficient to support his

conviction for DUI. He acknowledges that he was driving after consuming alcohol on

the night of the offense but argues that the state did not prove beyond a reasonable
doubt that he was intoxicated. The state contends that the evidence is sufficient.



             Our standard of review when the sufficiency of the evidence is questioned

on appeal 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, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

                                            4
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).


              Tennessee’s DUI statute provides, in pertinent part, as follows:

              It is unlawful for any person to drive or to be in physical control
              of any automobile or other motor driven vehicle on any of the
              public roads and highways of the state, or on any streets or
              alleys . . . while:
              (1) Under the influence of any intoxicant, marijuana, narcotic
              drug, or drug producing stimulating effects on the central
              nervous system[.]
The defendant concedes that he was driving. In the light most favorable to the state,

the evidence shows that the defendant drank six or seven beers, smelled of alcohol,

had difficulty walking and keeping balance, had bloodshot and glassy eyes, and could
not successfully complete the field sobriety tests. The state proved beyond a

reasonable doubt that the defendant was intoxicated.



                                     II. SENTENCING

              The defendant contends that the trial court erred by sentencing him to

confinement above the statutory minimum of one hundred twenty days, arguing that the

trial court erred by applying two enhancement factors and by failing to consider two

mitigating factors. The state contends that the record supports the trial court’s
determination that the defendant should serve seventy-five percent of his eleven month,

twenty-nine-day sentence in confinement.



              Appellate review of misdemeanor sentencing is de novo on the record

with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §§

40-35-401(d), -402(d). As the Sentencing Commission Comments to Tenn. Code Ann.
§ 40-35-401(d) note, the burden is now on the appealing party to show that the

sentence is improper. In misdemeanor sentencing, the court must consider the

purposes and principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code

Ann. § 40-35-302(d); see State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). In

DUI cases, Tenn. Code Ann. § 55-10-403(c) essentially mandates a maximum

sentence for DUI, “with the only function of the trial court being to determine what



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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).



              In sentencing the defendant to serve seventy-five percent of an eleven

month, twenty-nine-day sentence, the trial court considered the defendant’s previous

history of criminal convictions or behavior. Tenn. Code Ann. § 40-35-114(1). The
defendant contends that the trial court erroneously considered charges listed in the

presentence report that did not result in convictions. However, the defendant concedes

that aside from his DUI convictions, the presentence report reflects convictions for
driving on an expired license and reckless driving in 1989, domestic violence in 1990,

assault and destroying city property in 1991, and public intoxication and disorderly

conduct in 1993. Although the defendant argues that these convictions are for minor
misdemeanor offenses, the application of this factor is not limited to previous felony

convictions. See State v. Millbrooks, 819 S.W.2d 441, 446-47 (Tenn. Crim. App. 1991).

The trial court properly considered this enhancement factor.



              The trial court also considered the defendant’s “previous unwillingness to

comply with the conditions of a sentence involving release in the community.” Tenn.

Code Ann. § 40-35-114(8). The defendant argues that because the record is “sparse”

in this regard, the trial court erroneously considered factor (8). The record reflects that
the defendant was on probation for a 1990 domestic violence conviction when he was

charged with and convicted of assault and driving under the influence in 1991. It further

reflects that he was on probation for 1991 convictions for destroying city property,
disorderly conduct and resisting arrest, when he was charged with and convicted of

DUI, second offense, in 1992. In addition, the defendant was on probation for the 1992

DUI conviction when he was charged with and convicted of public intoxication and
disorderly conduct. Finally, while on probation for those charges, the defendant was

charged with and convicted of driving on a revoked license and violation of the

registration law in 1993. Although the defendant claims that this court cannot rely upon

the accuracy of the presentence report because it contains other errors, he makes no
showing that the disposition dates listed for the foregoing convictions are inaccurate.

The record supports the trial court’s application of factor (8).



                                              6
              The defendant contends that the trial court erred by failing to apply the

following mitigating factors, as listed in Tenn. Code Ann. § 40-35-113:

              (3) Substantial grounds exist tending to excuse or justify the
              defendant’s criminal conduct, though failing to establish a
              defense; [and]

              (12) The defendant acted under duress or under the
              domination of another person, even though the duress or the
              domination of another person is not sufficient to constitute a
              defense to the crime[.]

The defendant argues that these factors apply because of the circumstances under
which the offense was committed, i.e., Mr. Lovin becoming too ill to drive, requiring the

defendant to drive. We believe that the trial court properly declined to apply these

mitigating factors. The defendant’s circumstances were of his own making in that he
chose to accompany his two friends who had been drinking and chose to drink himself,

knowing that someone would have to drive home. Our review of the record further

shows that the trial court properly considered the sentencing principles provided in
Tenn. Code Ann. § 40-35-103. See Troutman, 879 S.W.2d at 272 (“Society demands

protection from those who habitually drink and drive in complete disregard for the

welfare of others and for the laws of this state.”).



              In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.



                                                   ________________________________
                                                   Joseph M. Tipton, Judge




CONCUR:

__________________________
James Curwood W itt, Jr., Judge


__________________________
Norma McGee Ogle, Judge




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