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State v. Keathly5/21/2003
ation, but whether that person's blood or breath alcohol concentration while driving was eight-hundredths of one (.08%) percent based upon reliable testing.
In the present case, the Appellant's blood alcohol concentration was .09%, and the Appellant was convicted of DUI in 1993. In order to show intoxication, as required for a vehicular assault conviction, the State relied upon the Appellant's prior conviction to reduce the presumptive level of intoxication to .08%. Accordingly, the prior DUI conviction became a necessary element of the offense. State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994) (the test for determining if an enhancement factor is an essential element of an offense is whether the same proof necessary to establish the enhancement factor would also establish an element of the offense). Based upon the foregoing, we conclude that application of enhancement factor (1) was improper.
The trial court applied enhancement factor (3), the offense involved more than one victim, to the Appellant's conviction. The Appellant, citing State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002), contends that application of this factor was inappropriate because "there cannot be multiple victims for any one charge referring to a particular named person." This court has defined "victim," as used in Tennessee Code Annotated Section 40-35-114(3), as being limited in scope to a person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime. State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994). This court has also held that factor (3) may not be applied to enhance a sentence when the Appellant is separately convicted of the offenses committed against each victim. State v. Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996), perm. to appeal denied, (Tenn. 1997); State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995) (citations omitted). Additionally, our supreme court has held that there cannot be multiple victims for any one offense where the indictment specifies a named victim. Imfeld, 70 S.W.3d at 698. Because the Appellant was convicted of an offense involving a specifically named victim in the indictment for vehicular assault, the trial court improperly applied enhancement factor (3) during sentencing to his conviction.
Regarding enhancement factor (10), no hesitation about committing a crime when the risk to human life was high, the Appellant argues that this factor "does not apply because there is no evidence in the record that anyone other than the victim was subject to being injured by the Appellant." In so applying this factor, the trial court concluded that:
The defendant again under the facts of this case posed a great risk to human lives in this situation by getting out on our roadways, getting drunk, driving and running through innocent men and women who were out there in evening traffic going home from work as was indicated from this victim. So he posed not only to this victim, but in looking at other people out there, the people on the roadway, that was testified in trial, there was proof that was put into the record of the long line of traffic there and the construction and number of people. It was a busy time of the evening, it wasn't a time when there wasn't any traffic out. So therefore the Court finds that these enhancement factors have been proven in this case as well.
Enhancement factor (10) may be applied in circumstances where individuals other than the victim are in the area of the Appellant's criminal conduct and are subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995) (citation omitted) (distinguished on other grounds). No
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