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State v. Biskner11/13/2001
on of public or private trust, or used a special skill in a manner that significantly facilitated the commission or the fulfillment of the offense," to enhance Defendant's sentences for child endangerment and felony DUI; and enhancement factors (10) and (16), applicable when " he defendant had no hesitation about committing a crime when the risk to human life was high," and " he crime was committed under circumstances under which the potential for bodily injury to a victim was great," respectively, to enhance Defendant's sentence for felony DUI. Tenn. Code Ann. § 40-35-114(1), (10), (15), and (16) (1997).
A. Enhancement Factor (1)
Defendant first argues that enhancement factor (1), requiring the defendant have "a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range" for the offense, Tenn. Code Ann. § 40-35-114(1), is inapplicable to her felony DUI offense. She contends that, because the prior convictions were already used to enhance the offense from a misdemeanor to a felony classification, using them to also enhance the length of her sentence constitutes "double enhancement," which is precluded by law.
It appears that Defendant is confusing the considerations necessary to determine her sentence range classification with the length of her sentence within the range. Defendant was sentenced as a Range I standard offender. A "standard offender" is defined as "a defendant not sentenced as (1) multiple offender as defined by § 40-35-106; (2) persistent offender as defined by § 40-35-107; (3) career offender as defined by § 40-35-108; (4) n especially mitigated offender as defined by § 40-35-109; or (5) repeat violent offender as defined by § 40-35-120." See Tenn. Code Ann. § 40-35-105 (1997). Since the requirements for sentencing as a multiple, persistent, career or repeat violent offender all involve consideration of only prior felony convictions, it becomes evident that none of Defendant's prior misdemeanor DUI convictions were used to establish the "appropriate range" for Defendant's sentence.
Notwithstanding this fact, an enhancement factor may not be used to enhance a sentence within the range if the proof used to establish the factor was used to also prove the offense. State v. Jones, 883 S.W.2d 597 (Tenn. 1994). Thus, because the proof necessary to convict Defendant of the felony DUI offense required the State to show Defendant's criminal record contained a minimum of three prior DUI convictions, these may not be used to enhance Defendant's sentence. Defendant has four prior convictions, however, and the fourth is therefore applicable to establish the enhancement factor.
B. Enhancement Factor (15)
Defendant also contends that enhancement factor (15), applicable when the defendant abused a position of public or private trust, was improperly applied to her sentences for child endangerment and felony DUI. In general, application of this factor requires a finding, first, that defendant occupied a position of trust, either public or private. See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). The position of parent, step-parent, babysitter, teacher, coach are examples, see id., and there is no doubt that Defendant, as the parent, is properly placed into this category. Whether or not a position of trust exists also turns upon the nature of the relationship, namely, whether the offender occupied a position that promoted confidence, reliability, or faith. If the evidence supports that finding, then the court must determine whether the position occupied was also abused by the commission of the offense. Id.
With regard to the sentence for child en
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