IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2002

STATE OF TENNESSEE v. MICHAEL JOSEPH 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 establish guilt beyond a reasonable doubt and (2) the trial court improperly sentenced the

Defendant. We affirm the judgment of the trial court.

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

DAVID H.WELLES,J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.

WEDEMEYER, JJ., joined.

Clifford K. McGown, Waverly, Tennessee; Joseph P. Atnip, Dresden, Tennessee, for the appellant,

Michael Joseph Cook.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and

Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

OPINION

On October 14, 2000, the Defendant and some friends began drinking around 6:30 p.m. The

group drank beer outside a service station and at a local bar until approximately midnight, when they,

among others, began to loiter outside a local convenience store. The Defendant stated at trial that

during the course of the evening he consumed seven beers. However, he claimed that the last beer

he consumed was at approximately 10:30 p.m. As a lark, someone took the Defendant’s truck and

moved it to a parking spot a short distance away from the convenience store. The Defendant became

angry and began to walk home. He then saw where his truck was parked, got in, and drove off. At

approximately 1:00 a.m., some fifteen minutes later, witnesses saw the Defendant enter the

convenience store parking lot at 50 to 60 miles per hour. William Riddle testified at trial that the
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Defendant looked intoxicated. The Defendant lost control of his truck as he roared through the

parking lot and collided with the truck in which Mr. Riddle and his fiancé sat.

When State Trooper Kevin Curtis arrived on the scene, the Defendant was still in his truck,

and the trooper noticed the Defendant smelled strongly of alcohol and was unsteady exiting the

truck. The Defendant told the trooper that he did not wish to perform any field sobriety tests, but

he would take a breath analysis test at the police station. According to the trooper, the defendant

“said he didn’t want to take any field sobriety tests, he’d had too much, he just wanted to go on to

jail.” Trooper Curtis observed the Defendant for 20 minutes at the jail and then administered the

breath test. The Defendant’s alcohol level was .18.

At trial, the Defendant contended that he was not intoxicated, but “lost his temper,” sped

through the parking lot, and was unable to control his vehicle. The Defendant argued that the breath

analysis test was in error.

SUFFICIENCY

The Defendant first contends that the evidence does not establish guilt beyond a reasonable

doubt. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after

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 beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of

guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.

See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,

105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate

view of the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,

995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial

testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,

639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be

given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts.

See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.

Crim. App. 1987).

Tennessee Code Annotated section 55-10-401 provides that
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The jury found the Defendant guilty of violating both subsection (1) and subsection (2). The trial judge

merged the convictions into one violation of Tenn. Code Ann. §§ 55-10-401(a)(1).

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(a) It is unlawful for any person to drive or to be in physical control of any

automobile or other motor driven vehicle on any of the public roads and highways

of the state, or on any streets or alleys, or while 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 central nervous system; or

(2) The alcohol concentration 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 consumed approximately seven beers on the

evening of the accident. Mr. Riddle testified that the Defendant drove his truck into Mr. Riddle’s

truck. Mr. Riddle and State Trooper Curtis both testified that the Defendant appeared to be

intoxicated. Furthermore, the breath analysis test showed that the Defendant’s breath alcohol

concentration was .18 percent. The Defendant testified at length, explaining to the jury that he was

angry at the time he lost control of his vehicle, but not intoxicated. The jury clearly did not find him

to be a credible witness.

Accordingly, we find sufficient evidence to support the Defendant’s convictions.

SENTENCING

The Defendant also contends that the trial court’s sentence was too harsh. Misdemeanor

sentencing is controlled by Tennessee Code Annotated section 40-35-302, which provides in part

that the trial court shall 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). Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and a great deal of

flexibility. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); State v. Baker, 966 S.W.2d

429, 434 (Tenn. Crim. App. 1997). One convicted of a misdemeanor, unlike one convicted of a

felony, is not entitled to a presumptive sentence. See State v. Creasy, 885 S.W.2d 829, 832 (Tenn.

Crim. App. 1994).

In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the court is

required to provide the defendant with a reasonable opportunity to be heard as to the length and

manner of service of the sentence. See Tenn. Code Ann. § 40-35-302(a). The trial court retains the
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authority to place the defendant on probation either immediately or after 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 sentence. The trial court found no mitigating

factors. Three enhancement factors were 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 was great. The record clearly supports the trial court’s finding that the circumstances of

the offense were quite serious and the Defendant’s conduct was particularly aggravated. We

conclude that the trial judge acted within his discretionary authority in ordering the Defendant to

serve six months in confinement. Accordingly, we find no error in the trial court’s sentence. 

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the trial court.

___________________________________ 

DAVID H. WELLES, JUDGE