# FILED
April 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9704-CR-00127

Appellee, * HAMBLEN CO UNTY VS. * Hon. James E. Be ckner, Judge ALICE COLLINS, * (Driving Under the Influence, Third Offense; Driving on a Rev oked License, Appellant. * Second Offense)

*

For Appellant : For Appellee : Ethel P. Laws, Attorney John Knox Walkup Office of the Public Defender Attorney General and Repor ter Third Judicial Distri ct 1609 College Park Dri

ve Janis L. Turner Box 11 Counsel for the State Morristown, TN 37813- 1618 Criminal Justice Div ision Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Victor Vaughn Assistant District A

ttorney General 510 Allison Street Morristown, TN 37814

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Alice Collins, w as found guilty of driv

ing under the influence, third offense, and driv ing on a revoked lic

ense, second offense. The trial court imposed concurrent eleven-month, twenty-nine-day sentences with release eligibility after service of seventy-five percent of the sentences. The trial court imposed a fine of $1,110.00 for driving under the influence and $500.00 for dri ving on a revoked license. The defendant's driver's license was suspended for f ive years and her vehicle was conditionally forfeited.

In this appeal of right, the de fendant claims that the evidence was insufficient and that the sentence w as excessive. We find no error and affirm the judgment of the trial court.

At approximately 7:30 P. M. on June 15, 1996, Mark Moffitt, who was accompanied by his girlfriend, Stacy Spencer, was driving his vehicle on Montross Road in Morristown when he encountered an older model Chevrolet truck approac hing in the opposite directio n. Moff itt testi fied at t rial that he had to drive into a yard to avoid be ing struck by the tr uck, which was "sw

erving all over

the road." Moffitt stated that the only occupant of the truck was "an older woman [wearing] a red shirt" and drinking from a can. He observed the truck travel only a short distance before being driv en onto a curb and parked.
At that point, Moffitt drove about one block to the Sp encer residence where he called 911. Moffitt returned to the scene about ten minut es later, met an officer, and learned that the driv er was still in the car. Moffitt identified the defendant as the driver.3 At trial, Ms. Spencer pr ovided a similar account . She described the driver as "an older-l ike lady, and she was tipping her beer can, and s he had on a red shirt." She recalled that the truck, after passing the Moffitt vehicle, drove through a stop sign and barely avoided striking two telephone poles and two trucks. Ms. Spencer testified that the defendant, w ho was positively

identified at trial, w

as the only occupant of the vehicl e.

Officer Phil Hurst of the Morr istown Police Department was the first to arrive at the scene. When he approached the t ruck, the defendant was ly ing on the passenger's side of the v ehicle in a "highly intoxicated" condition. He recalled that she was dressed in a r ed shirt. Although the officer found no keys, he determined that the truck would star t without a key. He

described the defendant as smelli ng of alcohol with slurred speech. He testified that the defendan t was unable to perform any of the field sobriety t ests he administered. Officer H urst testified that prior t o her arrest, the defendant claimed that s he had not been driving the truck. He stated that he had not seen the defendant's niece, Gw en Hayes, at the scene of the ar rest.
Officer Mark Campbell testifie d that both Moffitt and Ms. Spencer made positive identificatio ns of the defendant as the driver of the truck at the scene. It was his opinion that the defendant was under the influence o f alcohol.
Although the defendant signed the i mplied consent provided by the police, she refused a breathali zer examination. Poli ce were able to determine that the defendant's driver's l icense had been revoked.

At trial, the defendant acknowledged that she was the ow ner of the truck and was intox

icated at the time of her arrest . She denied, however, that she4 was the driver. The defendant claimed that her niece, Gw en Hayes, had taken her shopping and had left her in the v ehicle when Ms. Hay

es' father and brother stopped them and took her to her son, w ho had become ill. The defendant testified that the truck was parked at the residence of a friend, Dot Calfee. While acknowledging that the truck would operate w ithout the use of keys, the defendant deni ed that she had ever driven the v

ehicle in that manner. She cl aimed that Ms. Hayes had the keys at the time of the arrest. The defendant testified that the last thing she r emembered was "shopping at the mall "; she only vaguely recalled her niece say ing she intended to leave. The defendant claimed that bo th she and her niece were wearing red blouses on the date of her arrest; she acknowledged passing out in the truck.

Gwen Hayes testified that she had taken the defendant shopping a t Wal-Mart on the date of th e offense. She recalled that she learned f rom her sisterin-law, who w

orked at Wal-Mart, that her son had become i ll and that her husband was looking for her. She claimed that she met the defenda nt's ex-husband, James, at a market and he agreed to take the defendant home. Ms. Hayes co ntended that she met her father near a friend's r esidence and that he drove her away from the scene. She explained that sh e might have "swerv ed a little bit" along the way when the defendant "fell over on my lap. " Ms. Hayes claimed th at she took the keys to the truck with her. She t

estified that she first learned of the arrest when James telephoned her and told her that he had pulled into the parking lot just as the police officers had.
On appeal, the state is entitl ed to the strongest legi timate view of the evidence, and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are5 matters entrusted exclusi vely to the jury

as the triers of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A guil ty verdict, approv

ed by the trial judge, resolves all

evidentiary conflic

ts in favor of the theory of the state. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).

Here, the jury chose t

o accredit the testimony o f the prosecution witnesses and reject that offered by the defenda nt and Ms. Hayes. That was their prerogative. Eye

witnesses identified the defendant as the driver. There w as both direct and circumstantial corroborative evi dence which fully suppor ts the verdict. In our view, a ration al trier of fact could have found the essential elements of the crimes of driving under the influence and driving on a revoked license bey ond a reasonable doubt. The evidence of g uilt satisfies the standard p rescribed in Tenn. R. App. P. 13(e). Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781 (1 979).

Next, the defendant contends that an "i nequality exists in that [she] received more than the minimum" s entence. She contends that the sentenc e is not the least severe measure nec essary. When a challenge is made to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a "de novo review ... with a presumption that the determinations made by the court from which the appeal is tak en are correct." Tenn. Code Ann. § 40-35-401(d).
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and6 -210. State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles, purposes, and goals of the Cr iminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an authorized determinant sent ence with a percentage of tha t sentence designated for eligibility for rehabilitative prog rams. Generally, a per centage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Palmer , 902 S.W.2d at 393-94. In de termining the percentage of the sentence, the court m ust consider enhancement and mitigat ing factors as well as the legislative purposes and principles related to se ntencing. Id.

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to direct ing supervision by the Department of Correction. Tenn.Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy ,7 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

The minimum possible sentence wa s one hundred twenty day s. See Tenn. Code Ann. § 55-10-403(a)(1) . In this instance, the tr ial court imposed a greater sentence due to defendant's prior criminal his

tory which incl uded several alcohol-related offenses and two felony off enses for larceny. The trial court observed that in 1994, the defendant w as convicted of drivi ng under the influence, a public intoxication conviction in 1995, and a second driving under the influence offense in 1996; the defendant was on probati on when these offenses occurred. The trial court found the circumstances of this offense to be aggrav ated because the defendant forced another vehicle off the ro ad and almost struck two o ther vehicles. See Tenn. Code Ann. § 40-35-114(1), ( 8), (13), and (16). The tr ial court review

ed each of the principles of sentencing and conclude d that confinement was necessary to restrain the defendant because of her long, prior history of criminal conduct and to order a sentence of sufficient leng th in order to avoid depr eciating the seriousness of the crime. The trial court also pointed out tha t measures less restrictive than confine ment had been unsuccessfully appl ied to the defendant.

We concur with this assessment. In our view, the sentence i mposed was appropriate. Accor dingly, the judgment i s affirmed.

________________________________ Gary R. Wade, Judge8 CONCUR:

_____________________________ William M. Barker, Judge

_____________________________ Curwood Witt, Judge