### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 28, 2003 STATE OF TENNESSEE v. HOYLE ORR Appeal from the Circuit Court for Blount County No. C-13240-41 D. Kelly Thomas, Jr., Judge

No. E2002-03061-CCA-R3-CD December 13, 2003
The defenda

nt, Hoy le Orr, a ppeals a s of right from his convictions following a bench trial in the Blou ntCounty Circuit Court for driving under the influence (DUI ), third offense, a Class A misdemeanor, and driving ona revoked license, a Class B misdemeanor. The de fendant received concurrent

se nt en ce s o f e le ve n m on th s, tw en ty- ni ne da ys for the DUI and six months for driving on a revoked licen se and was ord ered to serve seven months of his sentence in the county jail, the remainde r on p robation. He was fined one thousand, one hundred dollars and his lice nse was revoked for three y ears. The defendant contendsthat (1) t

he evide nce is ins ufficie

nt to suppor

t his conviction for DUI , and (2) th e trial c ourt e rred by se ntencing him to more than the statutory minimum amounts of confinement for the convictions. We affirm the judgments of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OSEPH M. T IPTON , J., deliver ed the opinion of the

court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined. Raymond Mack Garner, District

Public Defend

er, and S hawn G. G

raham, A ssistant D istrict Pub lic Defender, for the appellant, Hoy le Orr. Paul G. Summers, Attorney Gene ral andReporter; Renee W. Turner, Assistant Attorney Genera l; Michael L. Fly

nn, District Attorney Gene ral; and Michael A. Gallegos, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION This case relates to the defendant’s ar rest on April 4, 2000, for DUI a nd driving on a revoked license. Although no record exists from the defendant’s trial, the parties stipulated that the following evidence was pre sented a

t the tria l: Eddie Davis, a patrol officer for the City of Maryville, testified that he received a call to watch for a blue Ford truck traveling south on U.S. Highway

129. Davi s said that when he saw the defendant driving the blue Ford truck, he was driving about five miles per hour in an area where the speed limit was for ty miles per

hour. He said that the defendant entered-2-

a Kentucky F

ried Chick en park ing lo t and p ulled up to the dr ive-t hrough window bu t did not ro ll his window down to place an order. Davis said that although he had activated his emerg ency lig hts and approached

the defendant’s truck, the defendant did not notice him until Davis knocked on the driver’s side window. Davis said the defendant was “thick tongue d” and had a strong o dor of alcohol on his breath and person. He said the defenda nt was unsteady on his fe et and had d

ifficult y stand ing. Davis said that after being unable to perf orm any field sobrie

ty tests on the defendant, he placed t he defe ndant und er arr est. He sa

id that the defenda nt refus ed to submitto a blood alcohol test and that his investigation revealed two bottles of liquor inside the defendant’s truc k. The defendant testified at trial that he consumed two beers in the afternoon on April 4, 2000. He said he was driving thirty-five miles per hour while on U.S. Highway

129. He said he did not see Davis at h

is window at the Kentucky Fried Chicken restaurant because he did not have any reason to be looking for t

he police . The def

endant sa idhe was unable to perform the field sobriety tests correctly

because of a bad b ack and

refuse d to take a

blood alc ohol test b ecause he was a fraid of nee dl es. The tri al c our t fo und th e de fen dan t gu il ty of DUI, third offense, and driving on a revoked license. At the sentencing hearing, the de fendant testified that he was sixty-three ye ars old and was in poor medi cal cond

iti on, with

liver, kid ney , and hea

rt proble ms. He sai d he had a

prior DU I in Blount County in 1997 or 1998 but did not remember receiving a DU I in 2000 before his arrest on the present charge. He said that after his arrest in this case, he was c harged with additional DUI ’s in Blount, Monroe, and Loudon Counties. On cross-e x aminati on, the defendant denied receiving a DUI in Blount County

in 1981 but admitted to being convicted of two prior DUI ’s. He sa

id he did notremembe

r pleadi ng gui lty t

o a DUI in Knox Co un ty o n M ay 24, 2001, and did not remember being charged with leaving the sc ene of an accident in Blount County on June 26, 2002. He acknowledged that he did not have a drive r’s license. I. SUFFICIENCY OF THE EVIDENCE The defenda

nt conten ds that the

evidenc e is insuffic ient to sup port his con vi cti on f or D UI. He acknowledges that he was driving after drinking alcohol on the day of the of fense but argues that the state did

not prove beyond

a reasonable doubt that he was intoxicated. The state contends that the evidence is sufficient. We agree with the state. Our sta ndard of review w

hen the sufficiency

of the ev idence i s questioned on app eal i s “whether, after viewing

the evide nce in the ligh t most favo

rable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presu

me that the

jury has reso lved all c onflicts in the testimo ny and drawn all reasona ble infer e nces from the evidence in favor of the state

. See State v. She ffield , 676 S.W.2d 542, 547 ( Tenn. 198 4); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).
Tenness ee’s DU

I sta tute, T.C. A. § 55-10 -401, pro vides, in p ertinen t part, a s follows:-3- (a) It is unlawful for any

person to drive or to be in phy sical control of any

automobile

or other motor driv en vehic le on any of the public roads and

highway s of the state, or on any stree ts or alleys . . . while: (1) Under

the influence of

any intoxicant, marijuan a, narc otic drug, or drug

producing stim

ula ting effects on the central nervous system; or (2) The alcohol concentration in such pers on ’s blood or breath is ten-hundredths of one percent (.10%) or more

. Id. § 55-10-401(a)(1)-(2). The def endant concedes that he was driving theblue Ford truck and that he drank alcohol on April 4, 2000. Officer Davis testified that the defendant smelled of a lcohol, had difficul ty walking and keeping balanc e, could not understand the field sobriety tests, an d refuse d to take a blood al cohol con

tent test. There were two bottles of liquor found inside his truck. The trial court could have inferred from

this evidence that the defendant was guilty beyond a re asonable doubt of driving under the influence. II. SENTENCING The defendant contends that the trial court erred

by sentencing

him to confinement above the statutory minimum of one hundred tw enty day s for the DUI conviction and two da ys for the driving on a revoked

license conv iction. The defendant argues that the trial c ourt should have consider ed statuto ry enhanc ement an d mitigat ing factors on the

record and that b ecause

it did not, the defendant should receive the statutory minimum time in jail. The state contends that the record supports the trial court’s determination that the defendant should serve an e ffective seven-mont

h sentence in confinement for DUI and driving on a revoked license. Appellat e review o f misdeme anor sen tencing is de novo on the record with a presumption that the trial court’s determinations are cor rect. T.C.A. §§ 40-35-401(d), -402(d). As the Sentencing Commission Comments to T.C.A. § 40 -35-401( d) note, t he burde n is now on t

he appe aling pa

rty to show that the sentence is improper. In misdeme anor sentencing, the cou rt must consider the purposes and principles of the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d); see Sta te v. Tr outman , 979 S.W.2d 271, 274 (Tenn. 1998). In DUI cases, T.C.A. § 55-10-403(c) essentia lly man dat es a max im um sen ten ce f or D UI, “with the only function of the trial court being to determine what period above the minimum period of incarce ration establishedby s ta tu te , i f a ny, is to be suspended.” State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).
In sentenc ing the d

efenda nt to serv e seven m

onths in the

county jail, the trial court noted the defendant’s two prior convictions for DUI but did not apply any enhancement or mitigating factors1 The l egisl ature’ s 2002 amendment to T.C.A. § 40-35-114, ef fect ive Jul y 4, 2002, added as the ne w enhancement fac tor ( 1) th at t he “of fen se wa s an a ct of

ter rori sm” but

chang ed th e exi sti ng enh ancemen t f actor s onl y by increa sing their d esigna ting num ber b y one. -4- on the record. See T.C.A. § 40-35-113, -114 (amended 2002). 1 The defendant contends that bec ause the trial court failed to consider enhan cement and mitigating factors on the record, the de fendant should receive the statutory minimum sentences for his convictions. The supreme court has held, however, that a trial court does not have to consider enhancement or mitigating factors on the record. Troutman , 979 S.W.2d at 274. In Troutman , the court stated:

while the be tter p racti ce is t o make findi ngs on the record when fixing a percentage of a de

fendant’s sentence to be served in incarcer ation, a trial court need only

consider the principles of sentencing and enhancement

and mitigating factors in orde r to com ply with the legislative mandates of the misdemeanor sentencing statute. Id. Thus, in misdemeanor cases, unlike felonies, the trial court is not required to place enhancement or mitigating factors on the record. See St at e v . H um ph re ys , 70 S.W.3d 752, 770 (Tenn. Crim. App. 2001). The record reflects that this is, at least, the defendant’s third conviction for DUI

. In addition, he has been charged with two DUI ’s since his arrest in this case. I n this respect, the defendant essentia lly acknowledged that he continued to drive on a r evoked li cense. The defendant did not ackno wledge any

guilt and fa iled to tak

e respon sibility

for his a ctions. Th

e recor d refle cts a continuing disregard for the law that does not bode w ell for th e defendant’s r

ehabilita tion chances. Our review o f the re cord show s that the t rial cou rt senten ced the d efenda nt proper ly a s provide d in T.C.A. § 40-35-103. See Troutman , 879 S.W.2d at 272 (“Society de mands protection from those who habitually drink and drive in c omplete disregard for the welfa re of others and for t

he l aws of this state.”). Based on the foregoing and the record as a whole, the judgment s of the tr ial court are affirmed.

___________________________________ JOSEPH M. TIPTON, JUDGE