# FILED
April 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE CRIMINA

L COURT OF APPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9706-CC-00218 ) vs. ) Franklin County ) GREGORY STEELE, ) Honorable J. Curtis S mith, Judge ) Appellant. ) (DUI) ) FOR THE APPE LLANT: FOR THE APPELLEE: ROBERT S. PETERS JOHN KNOX WALKUP Attorney At Law Attorney General & Reporter 10 0 F ir st Av en ue , S .W. Winchester, TN 37398 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Cordell

Hull Building Nashvi lle, TN 37243-0493 WILLIAM COPELAND Asst. Dist. Attor

ney General 324 Dinah Sho re Blvd. Winchester, TN 37398

OPINION FILED: _____________ AFFIRMED CURWOOD WITT, JUDGE2 

### OPINION

The defendant, Gregory Steele, directly appeals his c onv iction and sentence imposed by

the Fra nklin County Criminal Court. A jury co nvicted the defendant of driving a motor vehicle while under the influence of an intoxicant, first offense, and the trial judge imposed a $350.00 fine, suspension of driv ing privileges for one year, and a sentence of eleven months, tw enty-nine days, of

which fifteen days must be spent in confinement with the balance served on probation. The defendant challenges the sufficiency of the convicti ng evidence and the sentence imposed by the trial court. After a review of the record and bri efs, we affirm the judgment of the trial court.

On October 7, 1995, a Frankli n County deputy sheri ff observed the defendant driving his car at nig ht with onl y one headla mp working. Exc ept for the faulty headlam p, the de fendan t was driving h is vehicle l awfully, was not speeding, and was not driving

erratically. The deputy stopped the defendant in order to warn him about the headlamp. As the defendant exited his vehicle and met the officer, the officer

smelled b eer on the defendant. The defendant admitted to dri nking “between eight and ten cups of beer.” The officer testified heasked the defendant to perform a battery of field sobri ety tests, but the officer w as unable to recall the resultsof any tests. A second o fficer a rrived, an d althou gh he did n ot observe the tests, he testified that the defendant’s speech w as “sorta slurred” and

the defendant
was “sorta unsteady on his feet.” However, the s econd of fi cer testified he could understand the defendant’s words, and the defendant was polite. The defendant submitted to a blood test, theresults of which w ere stipulated into evi dence. The test r esults showed the defendant’s bl ood-alcohol level w as .10 percent. Th e defen da nt testified that, prior to bei ng stopped, he had attended a dinner where,
over a four-hour period, he drank “ four or five cups of beer, but . . . may have said eightto ten.” He testified he w as not und er the i nfluence, and the officer never informed him that he failed any of the f ield sobriety tests.3 When an accused challenges the su ff iciency of the convicting evidence, this court must revi ew the record to determine if the evide nce adduced at trial is s ufficie nt “to support the finding by the trier of fact of guilt bey ond a reasonable doubt.” Tenn. R. App. P. 13(e) . This rule is applicable to findi ngs of guilt based upon direct evidence,circumstantial evidence, or a combination of direct and circumsta ntial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the convicting evidence, this court does not re-weigh or r

e-evaluate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this court substitute its inferences for those drawn by the trier of fact from cir cumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856 , 859 (1956). To the contrary, this court is required to afford the state the strongest leg itimate view of the evidence contained in the record
as well as all r

easonabl e and leg itimate inferen ces whi ch may be drawn fr om th e evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

Questionsconcerning the credibi lity of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the tri er of fact, not this cou rt. Id . a t 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our supreme court said : “A guilty ver dict by the jury, approved by

the trial judge, accr

edits the testimony of the w itnesses for the State and resolves all confli cts in favor of the theory of the state.”

Since a verdict of guilt r em ove s the presumption of innocence and
r eplaces it with a presumption of g uilt, the accused, as the appel lant, has th e burden in thi s c ourt of illustrating w hy the evidence is i nsufficient to support the verdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guil t due to the sufficiency of the evidence unless the factscontained in the record are insufficient, as a matt er of law,4

fora rational t rier offact to find that the accused is guilty beyond a reasonable doubt. Id . at 914.

At the time ofthe offense, Tennessee Code Annotatedsection 55-10- 401 proscribed driving

an automob ile on public roads and certain oth er locations “while under the influence of any intox icant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous s ystem.” Tenn. Code Ann. § 55-10-401 ( 1993) (am ended 1996). Also, at the time of the offense, Tennes see Code Annotated section 55-10-408(a) declared a co n clusive presumption of intoxication upon a showing that the blood-a lcoh ol content was .10 percent or greater. See Amendments, Tenn. CodeAnn. § 55-10-408(Supp. 1996); see also 1995 Tenn. Pub. Acts 517. That pro vis ion for a conclusive pres umption of int oxic ation, enacted in 1995 but since deleted,was widely v iewed as being unconstitutional. See Francis v. Franklin , 471 U.S. 307, 105 S. Ct. 1965 (1985); Sandstrom v. Montana , 44 2 U.S. 510, 99 S. Ct. 2450 (1979) (holding that due process prohibits the prosecution's use of presumptions which are conclus ive in nature or which shift the burden of proof to the defendant); State v. Sensing , 843 S.W.2d 412, 417 (Tenn. 1992 ) (admonishing trial judges not to use the word “presumption”

in instructing the j ury as to the provis ions of Code section 55-10-408). However, our supreme court has held that a “criminal statute super ceded or repealed by an unconstitutional ac t i s left unaffected by the passage of the void repealing act.” State v. Dixon , 530 S.W.2d 73, 75 (Tenn. 1975). This principle has be en applied to the 1995 versio n of Code section 55-10-408. State v. Mar k Spencer King , No. 01C01-9608-CR-00343 ( Tenn. Crim. App., Nashville, Sept. 18, 1997). Therefore, the pre-1995 versi on of section 55-10-408 applies to the present
case. Under that version, a blood-alcohol weight of .10 percent or

greater created
a presumption of intoxication and impairment. See Amendments, Tenn. Code Ann. § 55-10-408 (Supp. 1996). Under Sensing , the courts must treat this presumption as a “permissible inference.” Sensing , 843 S.W.2d at 417.5 Although the defendant smelled of alcohol, admitted drinking sev eral cups of beer, and had some slurred speech and unst eadiness on his feet, we agr ee with the defendant that many of the usual indicat ors of driving under the influence
are not in evidence in the present case. He w as not observeddriving reckles sly or erratica lly. Also, there is no evi dence that he f ailed any field sobriety test. His speech was intelligibl e, and he was polite and well behaved. The defendant maintains the proof was in equipose and that his tes timony that he was not intoxicated was sufficient to overcom e the statutory inference and render the state’s case insufficient as a matter of law. With this conclusion we cannot ag ree.

The inference that the defendant was under the in f luence of an intoxicant

came into play because the blood test resulted in a finding of .10 per cent, the minimum amount to trigger the inference. Once trigg ered, “it was the function of the jury to decide w

hether . . . [the] inference of intox ication had been r

ebu tted bythe other evidence . . . .” St ate v . John Thomas Newell , No. 4, slip op. at 3 (Tenn. Crim. App., Jackson, June 17, 1986), perm. app. denied (Tenn. 1986). As defined in John Thomas Newell , the inference is an inference of fact to which the jurymay accord such prob ative value as it desires,an inference that is evidentially present in the case even thou gh there is opposing ev idence.

At trial, the defendant presented a plausible, fact- based argument for acquittal. Indeed, had the test result yiel ded a blood-alcohol percentag e less than .10, the ca se would like ly be contr olled by State v. James Russell Neill, Jr. , No. 02C01-9503-CC-00067 (Tenn. Crim. App., Jack son, Ma r. 6, 1996). In James Russell Neill , the officer stopped Neill’s car because of its presen ce at night in a high-cri me area. Neill smelled of alc ohol and admitted he had been drinking. The officer found alcohol inside the car. However, there had been no abnormal dri ving. The arresting officer placed no field sobriety test results into evidence and testified that Neill’s speech was not slurred, “his gait was normal, and he had no d ifficulty with his motor skills.” Id ., slip op. at 3. A breath-alcohol test y ielded a .09 percent6

result. This court commented, The mere odor of

alcohol upon one’s breath is insufficient to sustain a conv i ction for driving under the influence of an intoxicant. Moreover, a b loo d-alcohol level of .09 per cent does not create an inference . . . . Certainly a defendant may be convicted of the offen se of driving while under the influence of an intoxicant where the results of the breath test show a blo od-alcohol level of less

than .10 percent, but in such cases, ther e must also be evidence of the defendan t’s impaired driving abil ity. In this case, the record is simply dev oid of such evidence. Id ., slip op. at 4-5 (citatio ns omitted). This court rev ersed Neill’s conv

iction. However, in the present case, the blood-alcohol l eve l was sufficient to trigger the statutory inference. The legislature prescr ibed an inference of

intoxication, and in order for it to be applied, a line of demarcation must be drawn. M oreover, the line must be drawn where the l egislature dictates. Bec ause the defendant’s bloodalcohol level crossed that line, intox ication was a questi on of fact for the jury to determine. The defendant had the right and opportunity to challenge the inference and to persuade the jury that he was not intoxicated ; he had his day in court on this issue. Now, the jury

’s verdict of guilt

y stands presumptivel

y correct on appeal.

In the light most favorable to the state, the statutory inf erence , especiallyin conjunction with the proof tha t the defend ant had in fac t been drinking, that he smelled of alcohol, that his speech was “sorta slurr ed” and he was “sorta” unsteady on his feet, establis hed a sufficient basis for the jury ’s verdict.

The defendant’s second issue is his claim that the trial court erred in requiringhim to s erve fifteen days in confinement. He also complains that the sentencing determination was made without g iving hi m a reasonable opportunity to be heard.

In misdemeano r se ntencing, a separate sentenci ng hearing is not
man datory bu t the court is required to provide the defendant with a reasonable opportunity

to be heard as to the length andmanner of the sentence. Tenn. Code Ann. §40-35-30 2( a) (1997). Misdemeanor sentences must be specific and in7

accordance with the principles , purpose, and goals of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§40-35-104, 302 (Supp . 1996); Tenn. Code Ann. §40-35-117 (1990); State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor

offender must be sentenced to an authorized determinant sentence with a percentage of that sentenc e designa ted for e ligibility f or rehabi litative programs. Generally, a percentage of not greater than 75% of the sentence should be fixed for a misdemeanor offender; howev er, a DUI offender may be requ ired to
serve 100% of his sentence. Palmer , 902 S.W.2d at 393-94. In determining the percentage of the sentence, the court must consider enhanc ement and mitigating factors as well as the legislative purp oses and princip les related to th e sentencing. Id

.
Upon service of that percentage, the administ rative agency governing the rehabilit

ative prog ramsdetermines which among the lawful programs available is appropriat e. The tria l court retains the authori ty to place the defendant on probation either immediately or after a period of periodic or conti nuous confinement. Tenn. Code Ann. §40-35-302(e) (1997). The legislature has encour aged courts to consider public or private agencies for probation superv ision p rior

to directing supervision by the Departmen t of Corre ction. Tenn. Cod e Ann. §40-35-30 2(f) (1997). The governing

statute provides the tr

ial court has continuing jurisdictionin misdemeanor

cases and a wide l atitude of flexib ility. The misdemeanant, unlike the felon, is not entitled to

the presumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829 (Te nn. Crim. App. 1994).

The trial court imposed spli t confinement and in carcerated the defendant for fif te en days. Although the fifteen day s exceeds the minimum confinementof forty -eighthours for first-offense DUI, it is nevertheless within a range of reasonableness that must be entrusted to the trial court. W e find no fault with the sentence in this case.8 Furthermo re, the trial court committed no pr ejudicial error in th e manner in which itdetermined thesentence. After the jury r eturned its verdict and
was dismissed, the trial ju dge indicated he was r ea dy “to go ahead and have a sentencing hear ing at t his point in time.” He as ked the assistant distric t attorney general if the state had any proof to offer, and the state declined. At that p oint, defense counsel spoke and had the follow ing colloquy w

ith the trial judge: Defense attorney: Your Ho nor, we have nothing in addition. Court: All right. Defense attorney: We will, however, be filing the necessary motions. Court: Yes, sir. Al l right, counsel, I’m ready to impose sentence. Defense attorney: Yes, Your Honor. The court proceeded to impose sentence in the case, without objection by the defendant. We find the defendant was given a reasonable opportunity to be heard. Moreover, had there been no reasonable opportu nity, thedefendant has waivedthe issue by failing to object, seeTenn. R. App. P. 36(a), and furthermore hehas failed to demonstrate any prejudice from the asserted lack of opportunit yt o be heard. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

Finding no error, w

e affirm the judgment of the trial cour t.

________________________ CURWOOD WITT, JUDGE

CONCUR:

__________________________ GARY R. WADE, JUDGE

__________________________ WILLIAM M. BARKER, JUDGE