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

Briefs F ebruary 5 , 2002
STATE OF TENN ESSEE v. MICHAEL JOSE PH COOK
Appeal from the Circuit Court for Obion County No. I-43 William B. Acree, Jr., Judge

No. W2001-01539-CCA-R3-CD - Filed March 5, 2002

The Defendant, Michael Joseph Cook, was convicted of driving under the influence, second offense. The trial court sentenced him to 11 months and 29 days and required him to serve six months of that sentence in the local jail. On appeal, the Defendant contends that (1) the evidence was insufficient to establi sh guilt beyond a r easonable doubt and (2) the trial court improperly sentenced the Defend ant. We af

firm the j udgmen

t of the tr ial cour t.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBERT W. W EDEMEYER , JJ., joined.
Clifford K. McGown, Waverly, Tennessee; Joseph P. Atnip, Dresden, Tennessee, for the appella

nt, Michael Joseph Cook.

Paul G. Summers , Attorne y Gener al an d Reporter; J. Ross Dyer, Assistant Attorney General; and Thomas A. Thomas, District Attorney General, for the appe llee, State of Tennessee.
OPINION

On October 14, 2000, the Defendant and some friends bega n drinking around 6:30 p.m. The group drank

beer out side a se

rvice sta tion and a t a local b ar until a

pproximate

ly mi dn ig ht , w he n t he y, among o thers, be gan to

loiter outside a local convenience store. The Defenda nt stated at trial that during the cour se of the evening he consumed seven bee rs. However, he claimed that the last beer he consumed was at approximately 10:30 p.m. As a la rk, someone took the Defendant’s truck and moved it to a parking spot a short distance away from the convenience

store. Th e Defe ndant bec ame angry and began to walk home. He then saw whe re his truck was parked, got in, and drove off. At approxima

tely 1:00 a.m., some fifteen minutes later, witnesses saw the Defenda nt enter the convenience store parking lot at 50 to 60 miles per hour. W illia m Riddle testified at trial that the-2-

Defendant

looked int

oxicated. The Def

endant lo st contro l o f his truck as he roared through the parking lot and co llided with

the truck in which

Mr. Riddle

and his fi ancé sa

t.
When State Trooper Kevin Curtis arrived on the scene, the De fendant was still in

his truck, and the troop er notic ed the De fendant smelled st

rongly of alcoh ol and wa s unst eady e xiting the truck. The Defendant told the trooper that he did not wish to perform any field sob riet y tests, but he w ould take a breath analy sis test at the police station. According to the trooper, the defe ndant “said he didn’t wa

nt to take any field sob riety tests, he ’d had too

much, he j ust wante d to go on to jail.” Trooper Curtis observed the Defendant for 20 minutes at the ja il and then administe

red th e breath test. The Defendant’s alcohol level wa s .18.
At trial, the Defend ant conte

nded that he was no t intoxicate d, but “los t his temper,” sped throu gh the park

ing lot, a nd was una

ble to control his vehicle. The Defendant arg ued that the breath analysis test was in err

or.
SUFFICIENCY
The Defendant

first contends that the evidence does not establish guilt bey ond a reaso nable doubt. Tennessee Rule of Appellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whether by the

trial court or

jury shallbe set aside if the evidence is insufficient to support the findings by the trie

r of fact of guilt bey ond a reasonable doubt.” Evidence is sufficient if, a fter reviewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In a ddition, because conviction by a trier of

fact destroy s the presumption of innocence and imposes a presumption o f guilt, a convicted

criminal defendant bears the burden of showing that the evidenc e was insu fficien t. See McBee

v. State , 372 S.W.2d 1 73, 176 (T enn. 1963 ); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1 999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate vi ew of the evidence as well as all reasonable a nd legitimate inferences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The courtmay not “reweigh or re-evaluate the

evidence” in the record

below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing court find particular conflict s i n the trial te st im on y, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of witnesses, the w eight and value to be given the evidence, and all factual issues are r esolved by the trier

of fact, not the appellate co ur ts. See State v. Mo

rris , 24 S.W.3d 78 8, 795 (Te nn. 2000) ; State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Tennessee Code Annotated section 55-10-401 provides that1 The ju ry found t he Defendant

guil ty of viol ati ng both s ubsection (1) and subs ecti on (2). The tr ial jud g e merged the convictions into one violation of Tenn. Co de An n. §§ 55-10 -401(a)(1).
-3- (a) It is unlawful for any person to drive or to be in ph ys ical control of any automobile

or other motor driven vehicl e o n a ny o f t he pu bl ic ro ad s a nd hi gh wa ys of t he state, or on any streets or alleys, or w hile on the premises of any shopping center, trailer

park or any

apartment house complex, or any other premises which is generally frequented by

the public at large, while: (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the centr al nervous system; or (2) The alcohol conc entra tion in such person’s blood or breath is tenhundredths of one percent (.10%) or more. Tenn. Code Ann. § 55-10-401. 1

The Defendant testified at trial that he had consu med approximately seven bee rs on the evening of the accident. Mr. Riddle tes tified tha t the Def endant dr ove his truck into Mr. Riddle’s truck. Mr. Rid dle and State Trooper Curtis both testified that the Defendant appear ed to be intoxicated. Furthermore, the breath analy sis test show ed that the Defendant’s breath alcohol concentration was .18 percent. The Defendant testified a tlength, explaining to the jury that he was angry at the time he lost control of his vehicle, but not intoxica

ted. The jury clearly did not fin d him to be a cr edible wi tness.
Accord ingly , we find

sufficie nt evidence to supp ort the De fendant ’s convic tions.

SENTENCING
The Defendan t also cont ends that the trial court’s sentence was too harsh. Misdemeanor sentencing is controlled by Tennessee Code Annotated section 4 0-35-3 02, which provides in part that the trial court sha ll impose a specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See Tenn. Code Ann. § 40-35-302(b) . Misde meanor sentencing is desig ned to pro vid e the trial court with continuing jurisdiction and a great dea l of fl ex ib il it y. See State v. Troutman , 979 S.W.2d 271, 273 (Ten n. 1998); State v. Baker , 966 S.W.2d 429, 434 ( Tenn. Cri m. App. 1997). One convicted of a misdemeanor, unlike one convic ted of a fe lo ny, is not entitled to a presumptive sentence. See State v. Cr easy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

In misdemea

nor sente ncing, a separ

ate sentenc ing hea

ring is not manda

tory , but the c ourt is required to provide

the defe ndant with

a reaso nable opp ortunity to be hea

rd as to the lengt

h an d
manner of service of the sentence. See Tenn. Code Ann. § 40-35-302(a). The trial court re tains the-4-

authority to place the defendant on probation either immedi ately or af t er a time of periodic or continuous confinement. Id. § 40-35-302(e).
The trial court sentenced the Defendant to serve six months and remain on probation for the remainder

of his eleven month and twenty -nine day se ntence. The trial court found no mitigating factor s. Three enhancement factors we re noted by

the trial court: the offense involved more than one victim; the defendant

had no hesitation about committing a crime when the risk to human life was high; and the crime was committed under circumstances under which the potential for bodily injury to a victim w as gre at. The r ecord c learly

supports the trial court’s finding that the circumstances of the offense were quite serious and the Def endant’s conduct was particularly aggra vated. W e conc lude that the tr

ial judg e acted

within his d

iscretio nary

authority in order ing the D efenda

nt t o serve six months in confinement. Accordingly , we find no error in the trial court’s sentence.
CONCLUSION
For the f orego ing rea sons, we A

FFI RM the judgment of the

trial cou rt.

___________________________________ DAVID H. WELLES, JUDGE