# FILED
July 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1998

STATE OF TENN ESSEE, ) ) No. 01C01-9708-CC-00332 Appellee ) ) FRANKLIN COUNTY vs. ) ) Hon. THOMAS W. GRAHA M, Judge CHRIS W. FRAME, ) ) (Evading Arrest) Appellant )
For the Appellant : For the Appellee : Philip A. Con dra John Knox Walkup Dist. Public Defender Attorney General and Repor ter P. O. Box 220 Jasper, TN 37347 Janis L. Turner Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 James Michael Taylor District Attorney General William Copeland Asst. District Attor

ney General 324 Dinah Shore Blvd. Winchester, TN 37398

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 O P I N I O N
The appellant, Chris W. Frame, appeals as of right his conviction for the class A misdemeanor of

evading ar rest. The appellant was or iginally charg ed with driving under the influence, third offense, andevading arrest. At the conclus ion of the proof,
a Franklin County jur

y found the appellant not guilty of driving under the influence but guilty of evading arrest. The trial court sentenced the appellan t to 11 mo nths 29 d ays with 90 days incarc

eration in the county jai l followed by probation

.
On appeal, the appellant first contends that the evidence is insufficient to support his convic

tion for evadin g arres

t as a mat

ter of law. Second, he contends that his sentence was not imposed in accordance with the law and that the trial court er red in failing to grant “immedi ate and outright probation” for the entirety of his sentenc e.

After revi ew, we affi rm.

Background
Reviewing

the evidence in the lig ht most favorable to the State, the proof established that, on the evening of Sep tember 4, 1995, Officer Troy Mann of the Winchester Police Department, while patrolling Lynchbur g Highway, “

observed a blue truckin my

lane of travel or in the mi ddle of the road.” He activated hi s blue lights and turned around to follow the appellant’s vehicle. After follo wing th e truck to the residence of Roger

and Sheila Edwards, he saw the appellant emerge from the driver’s side of the truck and “take off on foot.” He s aw no one else in or near the truck. Roger Edwardsand his wife, Sheila, were standing at the front of the house. He then radioed forassistance. Sergeant Mike Doty , Investigator John St ewart, and Sergeant Mantooth respo nded to Mann’s call. Upo n arriving at the Edward s’ residence, th ey bega n3

searching for the appellant. Investigator Stewart located the appellant under the house. After receiving no respon se from his instruction that the appellant e merge f rom underneath the house, Investigator Stewart threatened to

“gas” him

if he did not c

ome out. The appellant then crawled out from underneath thehouse. Investigator Stewart “gota hold of his arm and got him to his feet. He was obviously intoxica ted .

. . because

. . . you could smell the alco hol . . . all over him, he was staggering.” Stewart then handc uffed the appellant and Officer Mann placed hi m under arrest. The appellant refused to submit to a blo od alcohol test.
Based upon the proof, the jury found th e appellant guilty of ev ading arrest.

Analysis
I. Sufficiency of the Evidence The appellant contends that the evidence against him is insufficient

as a matter of law to support his convictio n of evading arrest. When an accused chall enges the sufficiency of the evidence, an appellate court ’s stan dard of review is w hether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92 (1979); State
v. Duncan , 698 S.W .2d 63, 67 (Tenn. 1985, cert. denied , 475 U.S. 1031, 106 S.Ct. 1240 (1986)); Tenn. R. App. P. 13(e).

In determ ining th e sufficiency of the evidence, this court does not rewei gh or reevaluatethe evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the w itnesses, the weight

and value of the evidence, as well as all factual issues raise d by the evidence are resolv ed by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court1 The appellant did not t

estify at tri al. However, his fri ends, Roger Edwards and wi fe, Shelia Edwards, testified that, when the truck drove into their yard followed by the poli ce, there were three i ndividuals in the t ruck and that Jer ry Majors, not the appel lant, was drivi ng. The allege d driv er, M ajors , the n eph ew o f Ms . Edw ards and a resid ent o f “so me whe re in G eorg ia,” did not te stify. 4 substitute its inferences for those drawn by the tr

ier of fact from the evidence. Liakas
v. State , 199 Ten n. 298, 305, 286 S.W.2d 856, 859, cert. denied , 352 U.S. 845, 77 S.Ct. 39 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn.Crim.App. 1978). On the contrary, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate i nferences which may be drawn

from the evidence. Cabbage , 571 S.W.2d at 835.

The appellant’s insufficient ev idence claim is based upon the fact that the jury acqu itted him of driving under the influence. Our law prov ides that a person i s guilt y of evading arrest if that person: (1) intentionally flee[s] from any one the person knows to be a law

enforcem ent offi cer and (2 ) knows the officer is att empting to arrest the person. Tenn. Code Ann. § 39-16-603(a)(1 )(A) (1991). At trial, the appellant defended against the DUI charge upon gr oun ds tha t he was not the driver of the truck. 1 Accordin gly, he argues that, because the jury a ccredited the defense witness es and found that he was not the driver, there was no way for him to have known that the police were attempting

to arrest him.

The appellant’s insufficiency argumentthat, because he was acquitted of DUI , he cannot, as a matter of law, be guilty of evading arrest is essentially an “inconsistent verdicts” argument and is misplaced. Inconsistent verdicts are permitted as long as t here is sufficient evidence to permit a rational fact finde r to find a defendant’s g uil t beyond a reasonable doubt on the charges on whic h the defendant was convicted. In W igg ins v. State , 498 S.W.2d 92, 93 (Tenn. 1973), our Supreme Court adopt ed the analysis of

the United States Supreme Cour t in Dunn v. United States , 284 U.S. 390, 52 S.Ct. 189 (1932), and held that “consistency betwee n verdicts on separate counts of an indictment is not neces sary,” because “each count of an indictment is to be5

regarded as a separateindictment” and must be indiv idually supported

by the evidence. Thus, our analysis retu rns to the q uestion of whether the elements of the offense of evading arrest hav

e been proven beyond a reaso nable doubt.

At trial, the juryheard Officer Mann testify that he saw a truck being driven in an erratic manner on apublic high way. The proof further establ ished that Officer Mann pursued the truck, with “bl ue lights” on, into the Ed wards’ drivew

ay. Upon entering the Edwards’ property, the officer testified that he saw the appellant, who was drivi ng, open the door and flee from the truck. These facts are sufficient for a rational tr ier of fact to have found the appellant guilty of evading arrest beyo nd a rea sonable doub t. Tenn. R. App. 13(e). This issue is without merit.

In a somewhat related subiss ue of his insufficiency argument , the appellant contends that the office r, upon en tering the Edwards’ p roperty, “certainly did not have sufficientfacts upon which a w arra ntless arrest would have been proper.” In Tennessee, it is clear that an officer may make a valid warrantless misdemeanor arrest fora public offe nse committed or a breach of the peace threatened in his presence. SeeTenn. Code Ann. § 40-7-103(1) (1995 Supp.); State v. Duer , 616 S.W.2d 614, 616 (Tenn. Crim. App. 1981). Again,reviewing the t estimony in the

light most favorable to the State, Officer Mann testified that he perso nally observed a truck dri ving on the centerlineof the highway. After activatin g his blu e lights, the officer observ ed the appell ant get out of the truck and flee on foot. Aft er the appellant emerged fro m underneath the house, the officer concluded that the appellant was int oxicated. These facts and circumstances, as observed by the officer, would have justified an arrest for both DUI and evading ar rest. Tenn. R. App. 13(e). Thi s issue is without mer it.

II. Sentencing The appellan t next contends that the trialcourt imposed an excessi ve sentence.6

S pe cificall y, the appellant argues that the trial court did not follow the principles, purpose and goals of the Sentencing Act, when it imposed a sentence of 11 months 29 days with 90 days to be ser ved in the coun ty jail, followed by probation. Rather, the appellant asserts that he should have received “immediate and ou tright probation.”

When an appellant complains of his sent ence on appeal, this court conducts a de novo review coupled w

ith a presumption that t he trial court’s sentencing determinationsare correct. Tenn. Code Ann. § 40- 35-210(d) (1995 Supp.). However, this presumption is conditioned upon an affirmative showin g that the trial court consi dered the releva nt sentencing principles and all pertinent facts and circumstance s. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Regardless of w hether the presumption of correctness is applie d, the burden of showing the i mpropriety of the sentence is on the appealing party. Sentencing Commission Comments,Tenn. Code Ann. § 40-35-401.

Misdemeanor

sentencing is governed by Tenn. Code Ann. § 40-35-302 (1995 Supp.). Although otherwise e ntitled to the same considerati ons under the Sentencing Reform Act of 1989, unlike a felon, a misdemean ant is not entitled to the presumption of a minimum sentence. See State v. Seaton , 914 S.W.2d 129, 133 (Tenn. Crim.App. 1995) (citation omitted); State v. Warren , No. 01 C01-9605-CC-00218 ( Tenn. Crim. App. at Nashville, May

21, 1997) (citation omitted). Moreover, as a sentencing hearing is not mandat ory, see Tenn. Code Ann. § 40-35-302, trial courts are notrequired to explicitly place their fi ndings

on the r ecord; a lthoug h such pr actice is benefi cial fo r appellate review. See State v. M cKnight , No . 01C01-9509-CC-00313 (Tenn. C rim. App. at Nashville, June 11, 1996), perm. to appeal denied , (Tenn. Jan. 6, 19 97). Addi tionally,
w hile we a cknowledge that the purpo se of requiring the tri al court to consider enhancement and mitigating factors in felony sentencing is to assure thedetermination of an appropriate sentence wi thin the applicable sentencing range, we recognize that, a misdemeanor sente n ce, as opposed to a felony sentence, contains no sen tence7

range. See State v . Troutman , No. 03C01-9509-CC-00287 ( Tenn. Crim. App. at Knoxville, Nov. 6, 1996), perm. to appeal granted , (Tenn. May 5, 1997) (Ha yes, J., dissenting). Thus, although strict compliance with formal procedures is vital in felony sentencing in part to avoid dispar ity in the sentencing of defendants, s uch rigid compliance is not necessary in mi sdemeanor sente nci ng where the relativ e narrow sentencing periods encompassed by cl ass A, B, and C misdemeanors eliminates, per se , the potential for disparity

. Id

. Accordingly, in misdemeanor cases, the trial judge, who is able to observe first-ha nd the demeanor and responses of the defendant while testifying, must be granted broad discretion in arriving at the appr opriate sentence.

In this case, the trial cou rt imposed a 90 day period of incarceration in the county jail but granted work rel ease, permitting the appellant to be released from custody from 6:00 a.m. to 6:00 p.m. during w eekdays. This consideration was granted so that the a ppellantcould work in order to support his children and pay the assesse d fine an d court cost.
Upon de novo

review, we find that the trial court followed appropriate sentenc ing principles

and that the presu mption of correctness applies.The appel lant isa selfemployed landscaper and maintenance wo rker. A pre-se ntence records check, ordered by the court, reveal ed that the appellant hadprior co nvictions for larce ny, reckless driving, driv

ing under the influence and multi ple public intoxicati on convictions. The record indicates that the trial court considered the appellant’s “previous history of intoxication”

and the nature and circumstances of the present offense. Moreover, past efforts at rehabilitation, vi a probation, have been applied u nsuccessfully. For these reasons, we conclude that the appellant has fail ed to establish that the sentence imposed by the trial cour t is excessive. This issue is without merit.
Accordingly, the j udgment of the trial court is affirmed.8 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_____________________________ GARY R. WADE , Presiding Judge

_____________________________ JERRY L. SMITH, Jud ge