# FILED
June 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9706-CR-00221 Appellee, ) ) GREENE COUNTY VS. ) ) HON. JAMES E. BECKNER, RAYMOND W. HOUSTON, ) JUDGE ) Appellant. ) (Driving While Under the Influence ) and Failure to Yield)
FOR THE APPE LLANT: FOR THE APPELLEE:
WILLIAM H. BELL JOHN KNOX WALKUP 114 South Main St. Attorney General & Repor ter Greeneville, TN 37743 JANIS L. TUR NER Counsel for the State 425 Fifth Ave., North Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General CECIL C. MILLS, JR. Asst. District Attor

ney General P.O. Box 1876 Greeneville, TN 37744

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The defendant was convicted of driving while under the influence, second offense, and of failure to yield. The tri al court sentenced him to eleven mo nths, twen tynine days with a sev

enty-five percent

releas e eligibility for the driving whi le under the influence and thirty days for the fail ure to yield. In this appeal as of right, the defendant argues that the evidence was i nsufficient to support his conv ictionsand thathis sentence is excessive. He also challenges rulings made by the tria l court w ith regard to witness testimo ny. After a review of the record and ap plicable law, we find no merit to the defend ant’s argu ments an d, there fore, af firm the judgment of the co urt below.

On December 5, 1995, the defendant was involved in a two car accident in Greene County. Kevin Fincher, the dr iver of the second car, tes tified thathe had been drivingtoward Johnson City on Highway 11 East between the hours of six and seven in the evening. T he road is a four-la ned highwa y with the two sides being sep arated b y a grassy median with paved

cut-throughs. Fincher

was traveling in the inner lane when he
saw the defendant’s truck cross the median and pul l onto the highway without stopping to check for oncoming traffic. Fi ncher testified that he heard a cr as h and then his car started to spin. When the car stopped, Fincher chec ked on the well-being

of his mother and grandmother who wer e riding in the car w

ith hi m. He testif ied that both women’s injurieshad not appeared life threatening so he left th e car to check on the defendant. Ultimately, the women spent about three days in the hospital.

Fincher testified that as he had reached the defendant’s truck,the defendant had shouted i n a slurred speech, “Ge

t me out.” Fincher further stated that he had smelled beer and that the defendant and th e car had “reeked of it.”3 Jakie Christ y, a patrol officer with Greene County Sheriff’s De partment, testified that he had been the first officer to arriv e at the accident. He said he had seen six or seven beer cans in the fl oorboard of the defendant’s car. He al so observed an open beer can between t he defendan t’s legs. Ivan Williamson, a tr ooper with the Tennessee Highway Patr ol, testified that he too

had seen beer cans in the defendant’s
car. He said he had not asked the defendant to perform any field sobriety tests

because the defendant appeared to have been injur ed in the accident

and wasbeing transported to a nearby hospital. Williamsontestified that he had gone to the hospital and had asked the defendant to consent to a blood alcohol test but that the defendant refused. In fact, the defendant refused to have any blood wi thdrawn for any reason. The defendant was released from the hospital and was arrested eight days later.

Jeff Craft, a patrolman with the Greeneville Police,was at the hospital w hen the defendant arrived. Craft testified that the defendant had bloodshot eyes and had an odor of alcohol. He also testified that the defendant had said hehad one beer and had just opened the second when the acci dent occurred. The defendant also told Craft that he had been at the dentist’s office earlier that day and w as afraid the blood alcohol test mightbe affected by the nitrous oxi de he had received atthe dentist. On crossexamination, Craft stated that the defendant’s eyes appeared to be bl oodshot on that day in court as well.

The defendant called Jo hn Tyree, a member of the emergency medical personnel team, to testify about the accident.Tyree testifiedthat the defendant had not exhibited the c la ssic signs of intoxi cation when he examined hi m at the scene of the accident. He further testifiedthat the defendant was “semi-or iented” and appeared to be4

suffering from “impact syndrome.” Tyree stated that he

had not seen or smelled any b eer but that his only priori

ty had been getting the defendant out of the truck. He also testified that he had had no training to de termine whether a person i s intoxicated.
Allyson Carpenter, a private i nvestigator hired by the defendant, te stifie d that she had taken pictures of the highway where the accident occurred. These photos
were taken approximately ten months after the accident. In the photos is a caution sign warning motorists to slow dow n to 35 mph because of an upcoming inter section. The defendant called no other witnes ses but did introduce his den tist bill and his hospital report as exhibits.

The def endant now argues that the v erdict is not supported by sufficient evidence. A defendant challenging the s uf ficie ncy of the proof has the burden of illustratingto this Court why the evidence is insufficient to support the verdict r

eturned by the trier of fact in his or her case. This C ourt will not

disturb a verdict of g uilt for lack of sufficientevidence unless the facts c ontained in the record an d any i nferences which maybe drawn from the facts are insufficient, as a matter of law, for a rational trier of fact t o fin d the defendant guilty beyon d a reasonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challengesthe 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluat e the evidence and are req uired to afford the State the strongest leg itimate view of the proof contained in the record as well5

as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the eviden ce, as well as factual issues raisedby the evidence are r esolved bythe trier of fac

t , not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and approv ed by t he trial judge accredits the testimony of the witnesses

for the State, and a presumptio n of guil t replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The defendant challenges the sufficiency of the evidence r elating toboth his convictions. As to hi s conviction for driv ing while under the i nfluence, he points to the lackof a field sobriety test, the lack of a video of the acci dent scene, and the fact that he
was not arrested at the scen e of the accident as support for his argument. He argues that Trooper Williamson stated at an earlier h earing that the defendant “wasn’t what y ou say intoxicated.” At tr

ial, howev er, Trooper Williamson explained that bec ause the defendant had been somewhat injured by the accident, he could no t determine how intoxicated the defendant had been. He further testified that he had dete rmined that the defendant had been operating his car while under the influence of an i nto xicant based “on the accident and based on the inv estigation on the details and based on [the defendant’s] acknowledgment h e had con sumed alcohol and based on eviden ce . . . found at the scene.” Testimo ny was presented that the defendant had s melled of alcohol, that empty and full beers were found in his c ar, and that the defendant had an open can of beer between his legs.

We find this evidence to be enti rely sufficient to support the defendant’s6

conviction for driving while under the influence. We also note thatthe defendant’s refusal to take the blood alcohol test i s probative on the issue of guilt. State v. Morgan , 692 S.W.2d 428, 430 (Tenn. Crim. App. 1985). Therefore, we find no merit to the defendant’s sufficiency challenge of this conviction.
Likewise, we find the evidence sufficient to convict the defendant of failure to yield. The defendant clearly failed to y ield the right-of-w

ay to the traffic already flowing
on the highway. He pulled directly into the path of oncoming traffic causing his car to strike another. This iss ue is also lacking i n merit.

The defendant next argues that the t rial court erred when it refused to

allow defense counsel to que stion Jam ie Fincher, mother of Kevin Fincher, about the speed limit at a particular place on the highway. The defendant was seeking to show that Kevin Fincher had been speeding prior to the accident. First, evidence is considered relev ant if it has " any ten dency t o make th e exist

ence of any fa ct that is of consequence to the determination of the action more probable or less probable than it w ould be without the evidence." Tenn. R. Evid. 401. Second, the scope of cross-examination is largely within the trial cou rt's discreti on and that discretion wi ll not be disturbed absent a findi ng of abuse. State v. Lewis , 803 S.W.2d 260, 262 (Tenn. Crim. App. 1990). Thus, we h ave no trouble concluding that the trial court did not er r when it refus ed to allo w defense counsel to engage in the questi oning outlined above. The q uestioning had no tendency to make any fact of consequence to the defendant’s case more or less pr obable. It was completely irrelevant to the proceeding and, therefore, we find no abuse of discretion on behalf of the trial court. Whether or not Ke vin Fincher, the victim, had been speeding is irr e levant

to determining whether the defendant was driving while under the influence. This issue is without merit.7 The defendant next argues that Kev in Fincher “apparen tly lie d a number of times under oath.” He complains that Fincher w as not truthful when he said he did not have a fin anc ial interest in the outcome of the defend ant’s case. To support his argument, the defendant points to two letters, attached as exhibits to his b rief, that
concern Fincher’s insurance c overage. These letters in no way bring Fincher’scredibility into questi on. The ju ry heard and saw Fi ncher and believed his tes timony. Such a determination is solely within the province of the jury. State v. Bigbee , 885 S.W.2d 797, 804 (Tenn. 1994). We further point out that the defendant failed to litigate this issue at trial. He made no effort to introduce these l etters at trial, rather, he just attached them to his appellate brief. Because this issue was not considered at trial, it cannot be properly considered on appeal. See State v. Lunati , 665 S.W.2d 739, 749 (Ten n. Crim. App

. 1983).

As the defendant’s final issue, he contend s that his sentence is excessive. He argues that the trial c ourt erred when it cons idered h is criminal convic tions dating backtwenty-five y

ears. When a defendant complains of his or her sentence, we must conduct a de novo revi ew with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the s entence is improper is upon the appe aling part y. T.C.A. § 40-35-401(d) Sentencing C ommission Comments . T his presumption, however, “is conditioned upon the affirm ative showing in the recor d that the trial court cons idered the sentencing principles a nd all rel evant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

Tennessee Code Annotated § 40-35-103 sets o ut senten cing considerations

which are guidelines for determining whether or not a defendant should be incarcerated. These inclu de the need “to protect society by restraining a de

fendant8

who has a long history of criminal conduct,” the need “to avoid deprecia ting the seriousness of the offense,” the determination that “confinement i s particularly sui ted to pro vide an effective deterrence to others likely to commit similar offe nses,” o r th e determination that “measures less restricti ve than confinementhave frequently or recently been applied unsuccessfully to the defenda nt.” T.C.A. § 40-35-103(1).

In d etermining the specific sent ence and the possible combination o f sentencing alternatives, the cour t shall consider

the following: (1) any

evidence from the trial and sentencing hearing, (2) the presentence report,(3) the principles of sent encing and the arguments concerning sentencing alternatives, (4) the nature and characteristics of the off ense, (5) informa tion off ered by the State or the defendant concerning enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant’s statements in his or her own behalf concerning sent encing. T.C.A. § 40-35-210(b).

The defendant complains that the trial court erred w

hen it sentenced him to serve his sentence at seventy-fiv e percent. Generally, sentencing for misdemeanors ranges between zero and sev enty-five percent. T.C. A. § 40-35-302 (d). In order to determine what percentage a DUI offender sh ould receive, the court must consider enhancementand mitigating factors as well as legisl ative purposes and principles related to sentencing. State v. Dockery , 917 S.W.2d 258, 261 (Tenn. Crim. App. 1995). We also note that in misdemeanor sentencing , unlike felony, the defendant is not entitledto the presump tive min imum sentence. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

In sentencing the defendant to sev enty-five percent, the trial court relied on1 The trialcourt ori ginally announced i t would al so apply enha ncement factor si x, that the personal i njuries i nflict ed upon or the amount of damage to property sustained by

the vict im was particul arly g reat. T.C. A. § 40-35-114( 6). However, on reconsidera tion, the tri al court d etermined that that fact or should not

be applied . Therefore, we see no reason to di scuss the defendant ’s argument that factor si x was erroneously applied. 9 three enhancement factors from T.C.A. § 40-35-1 14. 1 As the first factor, the court relied
on the defendant’s history of criminal behavior and convictions. T.C.A. § 40-35-114(1). The defendant argues that the trial court relied on convictions more than twenty years old as well as criminal cases in w hich there was no formal disposition. From our r eview of the record, the defendant di d have a lengthy cri minal history. As the trial judge noted, “[Q]uite frankly, if there had been some ol d convictions that hadn’t been linked u p until the present time by similar offenses I would pretty much ag ree with [the defendant] that they wouldn’t be of a great deal weight, but when there’s pretty much a chain that links all the way back from ‘71 to the present date of similar offenses it makes a big difference. It does make it all highly relevant for consideration in sentencing.” The record certainly supports the trial j udge’s conclusions. We find no error in the appli cation of enhancement factor number one.

The trial court also applied enhancement factor eight, that

the defendant had a previous history of unwillingness to comply with the requirements of a sentence involving release in the

community. This factor was applied because the trial court found that during times when the d efendant was serving a suspen ded sentence, he was convicted on other charges. Again, we find no error in the application of this factor.

The last factor

applied by the trial court was factor sixteen, that the crim e was committed under circumstances in which the potential for bodily injury to a victim was great. The defendant argues this factor should not have been applied because it was not shown that he wasdriving in an “ex tremely reckless” manner. In general, factor si xteen maybe used as an enhancement factor in DUI cases. See Dockery , 917 S.W.2d at 263.1 0

In this case, the defendant drove his car across a hig hway median and into the path of oncoming traffic. He was under the influence at the time and had been drinking in his car immediately prior to the accident. These circum stanc es certainly created a situation where the potential for bodily har m was great. See State v. Joseph L. Fletcher , No. 03C 01-9606-CC-00229, Greene County (Tenn. Cri m. App. filed July 9, 1 997, a t Knoxville)(apply

ing factor

sixteen to

intoxicated defendant who r ear-ended a vehicle at
a stop light); S tate v. Kenneth L. Warren , No. 01CO1-9605-CC-00218, Williamson County (Tenn. Crim. App. filed May 21, 1997, at Nashville) (applying factor six teen to intoxicated defendant driving on busy highway).

Based on the above enhancement factors, the trial c ourt determined that the defendant’s release eligibi lity should be set at seventy-f ive percent. He denied any probation because “of the prior r ecord, the prior violation, the history of alcohol abuse, the history of drug abuse, the deterrence consideration, the particular circumstances

of thi s offens e, involving reckless driving,open beer in the car, personal injuries and property damage.”

Our review of the record entirely supports the sentence ordered by the tri al court. We find a seventy-five percent rel ease eligibility date ap propriate, and thus find no merit to the defendant’s argument that the sentence is excess ive.

For the f oregoing re asons, we a ffirm t he judgme nt of the court bel ow.

JOHN H. PEAY, Judge

CONCUR:1 1

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ CORNELIA A. CLARK , Special Judge