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

Briefs J une 24, 2003
STATE OF TENN ESSEE v. JANICE HA LL
Direct Appeal from the Criminal Court for White County

No. CR1037 Leon Burns, Jr., Judge

No. M2002-02320-CCA-R3-CD - July 24, 2003

After a benchtrial, the Defendant, Janice Hall, was convicted of two counts of vandalism under five hundreddollars, a Class A misdemeanor. The trialjudge sentenced her to concurrent terms of eleven months an d t we nt y-n in e d ays , wi th thirty -five da ys t o serve i n confine

ment. I n this dire ct appea

l, the Defendant argues that the evide nce was insufficient

to support her convictions and that the trial judge erred by

ordering her to serve

thirty-five day s in confinement. We affirm the judgments of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.

Joe L. F inley , Jr., Cookeville, Te

nnessee , for the

appella nt, Janice Hall.

Paul G. Summers, Attorney Gene ral and Repor

ter; Kim R. Helper, Assistant Attorney Genera l; Bill Gibson, District Attorney Gene ral; andWilliam M. L

ocke, As sistant Dis trict Atto rney Genera l, for the appellee, State of Tennessee.
OPINION

Tammy Blanton testified at the Defendant’s trial that her husband

and the Defendant had a
son together. In D ecember of 2001, Ms. Blanton and her husband w ere invo lved in a c ustody dispute withthe Defendant. At about 5:45 p.m. on December 17, 2001, Ms. Blanton and her three daughter s went to th e home of her m other -in-l aw, Deb bie Yo ung. Ms. Blanton parked her car in the drivew ay behind Ms. Young’s vehicle. App roximately five to eight minutes afte r she and her daughters arrived at Ms. Young’s house, Ms. Blanton “heard a sound that went psst, like that - a big air sound
or something.” Immediately thereafter, Ms. Blanton saw the Def endant go by

the window of the house. Ms. Blanton testified that there was no doubt in her mind that the person she saw outside the window was the Defendant. When Ms. Blanton and Ms. Young went outside, they discovered that-2-

all four tires on Ms. Young’s veh icle and all f our tireson Ms. Bla

nton’s ve hicle we re flat. Ms. Blanton testified that “[t]heyhad been stabbed and cut.” Ms. Blanton stated that she repla ced the tires, and they we

re valued at two-hundred fifty dollars.

On cross-examination, Ms. Blanton stated that, at the time her tires were slashed, it was dark outside. However, the porch light was turned on, a nd light from Ms. Young’s ki tchen and living
roomalso shone outside. On redirect, Ms. Blanton stated that she and her husband were supposed to be in court for the custody proceeding on the day

after her tires were damag ed.

Debbie Young , Ms. Blanton’s mother-in-law and grandmother of the Defendant’s son, testified that Ms. B lanton an d her thr ee daug hters ca me to her house on D ecembe

r 17, 2001 . Ms. Blanton parked her

car in Ms . Young ’s drive way , which wa s lit by a porch l ight and a stree t light. Ms. Young stated that Ms. Blanton arrived at approximately 5:45 p.m. About five minut

es afte r Ms. Blanton arrived, Ms. Young was sittingwith her back to the window, and Ms. Blanton asked her whether she hear d somethin g. Ms . Young wa s having difficulty hearing that night due to a head cold. Then Ms. Blanton said, “Well, there goes Janice.” By the time Ms. Young got outside, she
saw a person running thro ugh a field. However, it was “pitch blac k,” and Ms. Young could not identify the pe rson w ho was runni ng thro ugh the field. Ms. Young testified that the tires on her car and Ms. Blanton’s car h ad been cut. She e stimated t he value of her tir es to be tw o-hundred fifty dollars.

Ms. Young also testified that her grandson, the D efendant’s son, was in foster care. Sh e, Ms. Blanton and Ms. Blanton’s husband were trying to re

move him from foster care. The Defe ndant was upset about that and was attempting to prevent them from obtaining custody of the child. Ms. Young testified that

they were

scheduledto appear in court on December 18, 2001, re garding the custody dispute. Brittany Mott, Ms. Blanton’s twelve-ye ar-old daughter, testified that she, Ms. Blanton, and hertwin sisters w ent to Ms. Y oung’s house on D ecembe

r 17, 2001 . After t

hey had bee n at M s
. Young’s house a short time, she heard “a psst sound.” She turned around and saw the Defendant running from Ms. Young’s vehicle to the back of the house. Although it was da rk outside , Ms. Mott testi fied that she was positive that the person she saw running was the De fendant because of “her hair and stuff.” When she went outside, Ms. Mott noticed that the tires on both vehicles wereflat.

Earlene Betterton testified on the Defendant’s behalf

. She stated that she was working as an R.N. during December of 2001. On December 17, 2001, she got up at about 5:30 in the afternoon in order to be at wor

k at 7:00 p. m. She test

ified tha t she had d

inner wit h the Defendant, who was at her house from

the time sh

e got up at 5:30 p.m . until she

left for work at 6 :30 p.m.

On cross-e

xamination, Ms. Bette

rton stated that she had known the Defendant since the Defend ant

was twelve ye ars old. She testified that the Defendant referr ed to her and her husband
as “her adopted mom and dad.” The Defe ndant stayed in Ms. Be

tterton’s home for short periods of time, and she was staying there during December of 2001.-3-

Ms. Betterton stated that sheremembered the date of December 17, 2001, beca use it was the day be fo re th e D ef

en da nt ’s bi rt hd ay. She also testified that she became aware on December 18 that the Defend ant had been char ged wit h vandali sm. She sai d that she thought the Defendant

had learned of the charges when she we nt to court

on December

18 for the custody he aring. When the prosecutor

asked whether she could explain how she knew about the char ges against the Defenda

nt on December 18 when the Defenda nt was not arrested

until December

27, Ms. Betterton admitted that she did not know when the Defendant was “picked up” by the police.

The Defendant ’s firs t argument is that the evidence was not sufficient to support her two convictions for vandalism. Tennessee Rule o f Appel late P rocedu re 13(e ) presc ribes that “ [f]i ndin gs of guilt in c riminal a ctions whe

ther by the trial c ourt or ju

ry shall be s et aside

if the evidence i s insufficient

to support the findings by the trie r of fact of guilt bey

ond a reasonable doubt.” Evidence is sufficie

nt if, aft er revi ewing t

he evide nce in the

light most

fa vorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime beyond a reaso nable dou

bt. See Jackson v. V

irginia , 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 destroy s the presumption of innocence and imposes
a presumption of

guilt, a convicted criminaldefendant bears the burden of showing that the evidence
was insufficient. 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, 1 05-06 (T enn. 1999 ); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggl e , 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 view of the evidenceas well as all reasonable and legitimate infere nces that may be

drawn therefrom.” Tuggl e , 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 pa

rti cular conflicts in the trial test im on y, the court must resolve them in favor of the jury verdict or trial court judgment. Se e Tuggl e , 639 S.W.2d a

t 914. All qu estions inv olving th e credi bil ity o f witness es, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact, not

the appe llate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Tennessee Code Annotated section 39- 14-408(a ) provide s that “[a]n

y pe rson who k

nowingl y causes damage to or the

destruction of any r

eal or personal property

of another... knowing that the person does not

have the owner’s effective c onsent is guilty of an of fense under this section.” Ms. Blanton and Ms. Mott testified that, a few minut es after they arr ived at Ms. Young’s house, they heard a “psst” sound. They both also testified that they saw the Defendant shortly after they heard this sound. Ms. Young a

lso saw som

eone run ning aw ay , althoug

h she cou ld not identify the person. All three of

the State’s witnesses testified that, when they went outside, they

discovered that the tires on the vehicles belonging to Ms. Blanton and Ms. Young were cut and f

lat. Ms. Blanton

and Ms. Young e ach had

to repla ce all the tires on th

eir resp ective v ehicles

.1 Th e trial co urt stated , On the other hand, we have what would app ear to be an honest and disinterested party who would p rovide an alibi that it wasn’t Ms. Hall. So it’s a situation then of who you believe I guess. Based upon what Ms. Bettert on was in dicati ng, t hat sh e was pret

ty posi tiv e, but at th e sa me ti me a good many of her things are i nfor mati on th at c omes f rom Jani ce Hall , an d I’ m of t he opi nion that the re i s a l ikel ihood t hat ther e’s some con fus ion a bout t he dat e and times in Ms. Bett ert on ’ s testimo ny.

The record ref

lect s that the war rant m ay have been taken o n the 1 8th b ut it wasn’t ser ved till the 27th . It seems to me strange that M s. Ha ll would have b een in c ourt o n the 1 8th for her ch ild cust ody matt er, what ever that was, and be tol d aboutthe warr ant but n ot bee n arr est ed on the war rant. And so, at

any rate , I feel as tho ugh the pote ntial con fusion in the testimo ny of M s. Be tterton w ould jus ti fy th e Cour t f

in din g t hat

she is gui lt y of

th e of fe nse of v anda li sm.... -4- The Defendant urges us to find that this evidence is insufficient to support her convictions because of the testimony of

Ms. Betterton, who testified that, at the time the offenses were alleg ed to have occurred, the Defenda ntwas at he

r house e ating di nner. Th e Defe ndant cha racter izes Ms. Betterton as “believable.” I n contrast, the Defendant points out that the State’s witnesses were “very interested” in the outcome of the case. In support of this description, the Defendant emphasizes that the tires that were slashed belonged to Ms. Blanton and Ms. Young, thecustody battle be tween Ms. Blanton and her husband and the Defendant, and the a nimosity betwe en Ms. Blanton and the Defend ant.

Quite simply, the Defenda

nt asks us to declare the evidenc e insuff icient be cause th

e defen se witness was more credible than the State ’s witnesses. Obviously, the trial judg e, by finding the Defendant

guilty of two counts of

vandalism, accredited the testimony of the State ’s witnes ses. 1 We reitera te that the trial court, no t this Court, resolve s all issue s rega rding th e credi bility of witnes ses. See State v. Mo

rris , 24 S.W.3d 788, 795 (Tenn. 2 000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Based on the te stim ony of Ms. Blant on, Ms . Youn g, and M s. Mo tt, t he tri al jud ge as the trier of fact clearly

could have found bey ond a reasonable doubt that the Defendant slashed the tires of Ms. Blanton and Ms. Young and thereby c ommitted two acts of vandalism. Therefore, this issue i s without me

rit.

The Defendan t’s sec ond arg ument on a

ppeal is th at the tri al court erred b y or

dering her to
serve thirty-five day s in confinement. In suppo rt of her ar gument, she cites Tennessee Code Annotated section 40-35-103(4), which sta tes that “[t]he sentence imposed should be the least severe
measure necessary

to achieve the purposes for which the sente nce is imposed,” and Tennessee Code Annotated section 40-35-103(6), which states that “[t]rial jud

ges ar e encou raged to use alternatives to incarceration that include requirements of re paration, vict im com pensatio n and/or c ommunity service.”

The Defendant was convicted of two counts of vandalism of property valued at under fivehu ndred doll ars. Because acts of vanda lism are punished as theft, see Tenn. Code Ann. § 39-14- 408(c)(1), the Defendant was convicted of two counts of a Class A misdemeanor, see Tenn. Code-5-

Ann. § 39-14-105(1). Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302, which provides in part tha t the tria l court sh all impose

a specif ic sente nce con sistent wit

h the purposes and principles of the 198 9 Criminal S entenci ng Refo rm Act. See Tenn. Code Ann. § 40-35-302(b). Misdemeanor sentencing is designed to provide the trial court with co nti nuing jurisdiction and a

gre at de al of

flexi bi lity. See State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998); State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. A pp. 1997 ). One convicted of a misdemeanor, unlike one convicte d of a felony , is not ent itled to a presumptive sentence. See State v. Creas y , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

In misdemeanor sentencing, a separa te sentencing hearing is not mandatory, but the

court is required to provide the defendant with a reasonable opportuni ty 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 authority to place the defendant on probation e ith er immediately or a fter a time of periodic or continuous confinement. See id. § 40-35-302(e).

O ur supreme court has held that, although the better pra ctice is for a trial cou rt to mak e findi ngs on the record when fixing a percenta ge of a de fen dant’s se

ntence t o be serv ed in confine ment, such findings are not required. See Troutman , 979 S.W.2d at 274. A trial court does needto “consi der” the

principle s o f se ntencing and enhancement and mitiga ting factors when sentencing a misdemeanant. See id. In se ntencing the Defe ndant in th

is case, the trial court

did not place on the record its findings concerning the application of enhancement and mitigating factors or the sente ncing p rinciple s.

The record before us reflects that the Defendant was o n pre-trial diversion at the time the instant offenses were committed. Because the Defendant did not testify at trial, and because there is no presentencereport, the record contains almost no other information conce rning the Defe

ndant. The trial judg e order

ed her se ntence t o be served in split-confinement, and the Defendant a rgues on appea l that the judge should have ordered total probation. We note that the burde n of proving suitability for total probation rests with the Defendant. See Tenn. Code Ann. § 40-35-303(b). Based
on the rec ord befo

re us, we are unable to conclude that the trial judge erred or abused his discretion in order ing that a portion of the se ntence b e serve d in confi nement.

The judgments of the trial court are aff irmed.

___________________________________ DAVID H. WEL

LES, JUDGE