# FILED
May 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9604-CC-00140 Appellee, ) ) HANCOCK COUNTY VS. ) ) HON. JAMES E. BECKNER, RAYMOND O. BROWN, ) JUDGE ) Appellant. ) (Vandalism)

FOR THE APPE LLANT: FOR THE APPELLEE:
GRE G EI CHE LMAN JOHN KNOX WALKUP Public Defender Attorney General & Repor ter D. CLIFTON BARNES JANIS L. TUR NER Asst. Public Defender Counsel for the State 1609 College Park Dr.,Box 11 450 Jame s Roberts on Pkwy. Morristown, TN 37813- 1618 Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General FLOYD W. RHEA Asst. District Attor

ney General North Court St. Sneedville, TN 37869

OPINION FILED:____________________

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

The defendant wasindicted for assault and vandalism under five hundred dollars ($500). A jury found him g uilty of the vandalism offense, a Class Amisdemeanor, and assess ed a fine of one thousand five hundred doll ars ($1500). He was found n o t guilty of the

assault charge. The court below sentenced the defendant to in carceration foreleven months, twenty -nine days with a r

elease eligibility

date atten percent. In this direct appeal, the defendant contends that the evidence was not sufficient to support the verdict and that the trial court er red by not sentencing him to immediate probation. After a review of the recor d, we aff irm the ju dgment b elow.

Jennifer Louthan, age si xteen, testifi ed that she and the defenda nt, age twenty-three, had been engaged to be married. On the afternoon of April 12, 1995, she drove over to the defendant’s father’ s residence, where the defendant lived, with her girlfriend Renee Mink. Ms. Loutha n was dri ving a small pick- up truck which her father had bought for

her use. Ms. Louthan and the defendant got into an argum ent in which the defendant demanded that she return th e jewelry he had given her. Following this argument, according to Ms. Louthan,she backed to the top of the driv eway where the defendant, who was

in his car, bumped her truck twice fr om behind. Subsequently, he got out of his car, came over to her truck while she and M s. Mink sat in it and beat out the backwindow. Ms. Louthan testified that the defendant had then struck her tw ice in the head and then leaned into the truck and proceeded to attack her radio. Ms. Mink testified to the same effect.

The defendant took the stand and denied that he had broken out the truck window and further

denied striking Ms.Louthan. He testified that the truck window had already been broken when Ms. Lo utha n arrived at the house. The defendant’ s father testif ied that he had heard the argument and had watched the latter porti on of th e3

meeting between his son andhis fiancee and stated that he had not seen his son either break out the window or strike the girl. Otis Hat field, a friend of the defendant’s fa ther, testified similar ly. Debbie A. Goins testified that she had driven by the defend ant’s father’s house as Ms. Louthan was pul ling into the drive w ay and tha t the back window of the truck was already broken out.

A defendant

challe nging the suffi cienc y of the proof has the burden of illustratingto this Court why the evidence is insufficient to support the verdict returned by the trier of fact in his or her case. This Court will not dis turb a verdict of guilt for lack of sufficientevidence unless the facts c ontai ned in the record and any inferences which maybe drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty bey ond a reasonable doubt

. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In a challenge to the sufficiency of the convictingevidence, we must review the evidence in the light most favorable to the prosecution in determining whether “ any rational trier of fact could ha ve fo und the essential elements of the cr ime beyond a reasonable do ubt.” J ackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to af ford the State the strongest legitimate view of the proof contained in the record as well as all reasonable and legiti mate inf erences wh ich may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the

evidence, as

well as factual issues

raised by the evidenc

e are resolved bythe trier of fact, not this Cour t. Cabbage , 571 S.W.2d 83 2 , 835. A guilty verdict rendered by the jury and approv ed by the trial judge accredits the te stim ony of the witnesses

for the State, and a presumption of guilt replace s the pre sumption of4

innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The instant case is a c lassic ex ample of a swearing contest. The jury believed Ms. Louthan’s versionof how her truck wi ndow came to be broken. This w as the jury’s prerogative and we will not disturbits verdict. The defendant’s arg ument that the jury’s decision to

acquit him on the assault c harge pro ves that it had reasonable doubt as to the vandalism charg e i s without basis in law or fact. The evidence was sufficientto prove that he vandalized Ms. Louthan ’s truck and this issue is without merit.

The defendant next contends that the trial court err

ed by not puttinghim on immediate probation. We disagree. Thetrial court denied immediat e probation “because of the prior [criminal] r

ecord, the history of alco hol abuse, and the det erren ce factor.” The defendant has two p rior c onvictions for DUI. He also admitted during crossexamination in the guilt phase of the trial that he had been driving without a driver’s license at the t ime of the offense. He told the of ficer preparing the presentence report that he had started using alcohol at age sixteen and that he continuesto use it “now and then.” The “deterrence fa ctor” referred t o the court’s par ticular concern t hat “a message needs to go out that violence is not the way to settle conflicts.”

When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T. C.A. § 40-35-401(d). This pr esumption, however, “is condition ed upon the a ffirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing C ommission Comments.

Our revie w o f the record establishes that the trial court consider ed the5

sentencin g princi ples and all relevant facts and circumstances and the def endant’s sentence is therefore cloaked with the presumption of correctness. In se ntencing the defendant, the trial court consi dered the sentencing purposes set forth in T.C.A. § 40-35-102, an d “highlighted” the following:

[O]ne, every

defendant

shall be punish ed by th e imposition of a sente nce justly deserved i n relation to the seriousnes s of the offense. Number two, to assure fair and consistent treatment of all defendants by eliminating unj ustified d ispa rity in sentencing and providing a fair sense of predictability of the criminal law and its sanctions. And thr

ee, to prevent crime and promote respect forthe law by providing an effective deterrent to those lik ely t o violate the criminal l aws of the state.
T.C.A. § 40-35-102 (1), (2) and ( 3)(a). The cour t further considered the sentenci ng consideration s set forth in T .C.A. § 40-35-1 03, and “highlight ed” the followin g:

One, confinement is necessar y to avoid depreciating the seriousness of the offense, or confinement is part icularly suited to provi de an effe ctive de terrence to others likely to commit similar offenses. . . . How ever, the sentence imposed sho uld be n o greater th an that deser ved for the o

ffense commi tted

. Inequalities

in sentences should be av oided and the sentence imp o sed should be the least sever e measure necessary to achieve the purposes for w hich the sentence is imposed. T.C.A. § 40-35-103 (1)(B),(2) and (3).

The burden ofestablishingsuitability for probati on rests with the defendant. T.C.A. § 40-35-303(b); State v. Charlton , 746 S.W.2d 467, 469 (Tenn. Crim

. App. 1987). Factors applicable to determining the defendant’s suitability for probation include the circumstances

of the of fense, his crimin al record , social h istory a nd pres ent condition, and the deterrent effect upon and best inter est of the defendant and the public. State v. Gennoe , 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992).

It is clear from the record of thi s cause that the defendant do es not hav e a great deal of re spect for ou r laws: he started dr inking while undera

ge; he has been1 W e note tha t the trial judge did set the d efenda nt’s releas e eligibility at ten perc ent. 6 convicted for DUI twice, yet continues to drink; he has dr iven his car up on the public highways without a license to do so; and he engaged in an act of vandal ism while upset with his fiancee. As set forth abov e, the trial court’s decision to deny immediate probation is presumed correct. Our de novo review of the record es tablishes tha t the evidence does not preponderate against the court’s impli ed finding below that the defendant did not carry his burden of proving his suitability for probati on. We therefore conclude that the factors relied upon by the trial court in denying probation were proper. 1 As we have stated before, “This [C]ourt should no t place trial judges i n a judicial straight-jacket in the
area of sente ncin g, and we should exer cise restraint in inte rfering with their traditional discretionary powers.” State v. Charles Jerry Talley , No. 03C01-9508-CC-00220, Bl ount County (Tenn. Crim. App. fil ed May 21, 1996, at Knoxv ille).
The judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

_____________________________________ PAUL G. SUMMERS, Ju dge

_____________________________________ CORNELIA A. CLARK , Special Judge