# FILED
March 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9803-CR-00124 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. FRANK

G. CLEMENT, JR., SEAN A SHLEY TAYLOR, ) JUDGE ) Appellant. ) (Driving Under the Influence)

FOR THE APPE LLANT: FOR THE APPELLEE:
KARL D EAN JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter HOLLIS I. MOORE, JR. DARYL J. BRAND Asst. Public Defender Asst. Attorney General 1202 Stahlma n Bldg. Cordell Hull Bldg., 2nd Fl. Nashville, TN 37201 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General EDW ARD S . RYAN Asst. District Attor

ney General 222 Second Ave., South Nashville, TN 37201

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The Davidson C ounty g rand jury indicted the defendant on one count of driving under the influence, f i rst offense. Following a trial, a jury conv icted him of the charged offense. Immediate ly fo llowing the ver dict, the trial judge s

entenced him to eleven months, twenty-nine days with all but two days suspended and two hundred hours of public service w

ork. The trial judge al so revoked the defendant’s dr ivin g privileges, required th at he attend an alcohol treatment pr ogram, and assessed a fine of three hundred fifty dollars ($350). The defendant now appeals an d argues that the evidence
was insufficient to su ppo rt his conviction and that his sentence is improper. After a review of the

record and applicable law, w e find no merit to the defendant’s arg uments and, therefore, affirm the judgment of the tr ial court.

In the early morning hours of February 11, 1995, Officer H un saker of the Metropolitan Police Department was flagged down by an employ ee of the Classic Cat. Officer Hunsake r went inside the club and fo und the defendant asleep at one of the tables with a

half- empty bott le of scotch in his lap. Officer Hunsaker shook the defendant’s shoulder and after the defendant woke, asked him if he needed a ride home. At this point, Officer Hunsaker noticed a“str ong odor of alcohol” on the defendant and that the defendant seemed uncoordinated. Accor ding to Officer

Hunsaker, the defendant said he did not need a ride because “ he had someone c oming to get him.” Officer Hunsaker

then left the club and went to hi s car. While in his car, Officer Hunsake r saw the defendant walk out of the bar, get into his c ar, and drive away . Officer Hunsaker then followed the defendant and observed that his car was “weav ing in and out of the centerturn lane.” Officer Hunsaker activated his emergency equipment at which po int the defendant made a wide left turn and hit the grass area loc ated off of the shoulder of the road. After th e defendant came to a complete stop, Officer H unsaker approached the3

car. Officer Hunsaker testified that a fter he asked the defendant to step out of the car, the defendant used the door to brace himself and get out of the car. According to Officer Hunsaker, the def end ant seem ed disori ented, u nsteady, and unre sponsive . Additio nally, the defendant’s eyes were bloodshot, his speech was slurred, and he smelled of alcohol. Based upon his observations, O fficer Hunsaker believed tha t the defe ndant was intoxicated and asked the defendant to submit to a field a l cohol test. The defendant refused and wasplaced under arrest for driving under the influence. The defendant then refused to submit to a breath-alcohol test. Upon arr iv al at the police station, the defendant again refus ed to consent to a breath-alcohol test. The bottle of scotch the defendant had in the bar was subseq uently found in the defendant’s car.

As his first issue, the defendant contends that the verdict is not supported bysufficient evidence. A defendant chal lenging the suff iciency of the proof has the burden of illustrating to this Court why the evidence is insufficient to support the verdict returned by the trier

of fact in his or her case. This Court will not disturb a verdict of guilt forlack of sufficient

evidence unless the

facts contained in the record a nd any inferences which may be drawn from the facts are insufficient, as a matter of law, for

a rational trier of fact to fi nd the defenda nt guilty beyond a r easonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (T enn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we
m ust r eview the evidence in the light most favorab le to the prosecution in deter mining whether “ any rational trier of fact could have found the essential el ements of the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not
rew eigh or re- evaluate the evidence and are required to afford the State the strongest legitimateview of the p roof contained in the record as well as all reasonabl e and legitimateinferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d4

832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the

evidence, as

well as factual issues

raised by the evidenc

e are resolved bythe trier of fact, not this Cour t. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and approv ed by the trial judge accr edits the testimony of the witnesses

for the State , and a presump tion of gu ilt repla ces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The defendant argues that his conviction rest

s entirely on the testi mony of Officer Hunsaker an d, as Officer Hunsaker’s testimo ny was filled with inconsistencies, the jury did not have su fficient evidence upon whic h to convict the defendant. The defendant also complains th e jury “refused to credi t any of the defendant’s testimony. ” However, as previously st ated, the credibility of the witnesses is determi ned by the trier of fact, not this Court. The jury obviously believed Officer Hunsaker’s testimony over that of the defendant. As this was entirely within the province of the jury, this contention is without merit.

The defendant next contends that the tri al court erred in sentenci ng him to
serve f orty-e ight hours in jail i n addition to two hundred hour s of public service w

ork. When a defendant complainsof his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-3 5-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C .A. § 40-35-401(d) Sentencing Commission Comments. This presum ption, however, “is c onditio ned upon the aff irmative showing i n the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).5 The defendant argues that T.C.A. § 55-10-403(n) allow s the trial judge to sentence a defend ant convicted of driving under the influence, first offense, to the minimum period of confinement set out in subsection (a) or to tw o hundred hours of public service work, but not both. However, the defendant fails to address T.C.A. § 55- 10-403(a)(1) which states,

After service of at least the minimum sentence day for day, the judge has the discreti on to require an indiv idual convicted of a violation of the provi sions of §§ 55-10-401 - 55-10-404 to remove litter from the state highway syst em, public playgrounds, public parks or other appr opriate locations for any prescribed period or to work in a recy cling center or other appropriate location for any pres

cribed peri od of time

in lieu of or in addition to any of the penalties otherwise provided in this secti on . . . . T.C.A. § 55-10-403(a)(1) (emphasi s added). This statute giv es the trial judge the authority to sentence a defendant to public ser vice work in addition to a period of confinement. Such publ ic service work can include the removal of litter from certain
areas or work in a recy

cling center or “other

appropriate location.” Thi s section also giv es the judge the authority t o sentence a defendant toperform public service work “ for any prescribed period of time.”

Here, the trial ju dge sentenced the defendant to two h undred hours of public service work. Under § 55-10-403(a), he had the statutory authority to do so while sim ultaneously imposing a sentence of incarc eration. Therefore, the defendant ’ s contention is without mer it.
For the foregoing reasons , we affirm the judgment of the tri al court.

______________________________ JOHN H. PEAY, Judge6

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ THOMAS T. W OODALL, Judge