### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 2000 Session
STATE OF TENNESSEE v. WILLIAM TIMOTHY TEAL
Direct Appeal from the Circuit Court for Coffee County

No. 29,444 John W. Rollins, Judge

No. M1999-02580-CCA-R3-CD - Filed October 4, 2000

The appellant/defe

ndant, William Timothy Teal, appeals as of right from his conviction for driving under the influence o f an in

toxicant, third offe

nse, pursuant to a

bench trial by

the Coffee County Circuit Court. The defendant presents two appellate issues: (1) Whether t he evidence at trial was sufficient to support the trial court’s finding of guilt beyond a reasonable doubt?; (2) Whether the trial court imposed an excessive sentence of nine (9) months in the Coffee County jail? We affirm the judgment of th

e trial court. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

L. T ERRY L AFFERTY , S R

. J., delivered the opinion of the court, in which J ERRY L. S MITH , J., and J OE G. R ILEY , J., joined.
Robert T. Carter,

Esq., Tullahoma, T

ennessee, for th

e appellant, Willi

am Timothy Teal.

Paul G. Summers, Attorne y General &

Reporter and Lucian D. Geise, Assistant Attorney Genera

l, for the appellee, State of Tennessee.

OPINION

OnJanuary 7, 1999, the Coffee County Grand Jury returned a four count indictment a

gainst the defendant for multiple offenses occurring on September 28, 1998. Count One alleges that the defendant was drivin g a

motor v ehicle upon the public roads of Coffee County while under the influence of an intoxicant. Further, the count al leges that this is the defendant’s third offense for unlawfully

driving an automobile upon the public ro ads of this State while under the influence of
anintoxicant. Count Two alleges that the defendant did drive a motor vehicle upon a public highway inCoffee County

at the time

when his privilege to do so was canceled, suspended or revoked. Count Three alleges that

the defendant did drive a motor vehicle upon the public roads of the State without having a lawfully displayed and attached ther eto a registration plate. Count Four alleges that the-2-

d efendant did provide or aid in providing Alfred Honea with a means to avoid arrest, trial o r pun ish men t fo r th e off ens e of a ggra vat ed b urgl ary.
OnApril 26, 1999, at the conclusion of a bench trial, the

trial court found

the defendant,

in Count One, guilty of driving under the influence of an i

ntoxicant, third off

ense; in Count Two, the defendant stipulated that he w

as guilty of

driving while his l

icense was revoked; and in Count Three, the trial court found the defendant guilty of improper reg istration of his vehicle. As to Count Four, the State conceded that the evidence did not supporta felony co nviction for aidin

g Alfred Honea

in avoiding an arrest or

prosecution and

joined in the defendant’s motion to dismiss pursuant to Tenn. R. Crim. P. 29. On May 26, 1999, the trial court imposed a fine of one thousand five hundred dollars ($1,500.00) and confinement f or 11 months and 29 da

ys in the Coffee County jail for the offense of driving under the influen

ce of an intoxicant

, third offense

in Count One. The trial court required the defendant to serve nine (9) months and thenbe p lac ed o n pr oba tio n fo r tw o (2 ) mo nth s an d tw ent ynine (29) days. As to Count Two, for the offense of driving on a revoke d license, the tria l court imposed a fifty dollar ($50.00) fine and forty-eight (48) day

s in the County jail. This sentence was consecutive with Count One. Alth ough the trial court found the defendant guilty of improper registration of his automobile plate, the trial court dismissed this conviction.

TRIAL TESTIMONY Doug Richardson, Chief Investigator for the Coffee County Sheriff's Department, testified that he and Deputy Chad Partin, on September 25, 1998, were looking for Alfre d Honea. Honea had escaped fr om a men tal institution. Chief Richardson stated that he had received information that Honea was seen in the defendant’s vehicle. Chief Richardson testified t hat he saw t he defendant driving his car on J.D. Neal Road, near the pumping station. Chief Richards on stopp ed the defendant’s car, at which time Honea got out of

the vehicle

and ran downthe road, pursued by Deputy Partin. Chief Richardson secured the defendant. He noticed that the defendant smelled of
analcoholic beverage (beer), had slurred speech, red e yes, and w as unsteady on his feet. Chief Richardson

charged the defendant with DUI, third offense, violation of registration, driving on a revoked license, and aiding a fugitive. Chief Richardson found in the car, two large dogs and three
or four cold beers. One beer had s pilled on the passenger’s side and was still about half full, and there was an empty

bottle in the driver’s vicinity. A lso, in the rear seat were four or five empty bee r cans. Chief Richards o n testified that in h is seventeen (17)

years of e

xperience, he ha

s dealt with many persons who were intoxicated. Based upon his experience, training, and knowle dge, Chief Richardson

was of the opinion that the defendant was moderately intoxicated, was not falling down drunk, and that the defendant had too much to drink and drive. During cross-examination, Chief Richardson agreed that he and the other deputies were at the
scene for many hours, mainly looking for Hone a. He spe nt a

bout five (5) to te

n (10) minutes with the defendant. As to the two open beer bottles in the car, Chief Richardson could not say who drank wh ich or any of them. Chief Richardson could not say wha t, if any of the defendant’s driving was erratic, in that he stopped him quickly. Chief Richardson admitted that he did not put in his report about the empty beer cans on the rear seat, or that the defendant’s speech was slurred. Chief-3-

Richar dso n could not say how long the empty beer cans had been in the car. Chief Richardson acknowledged that the defendant was at the scene for

approximately four hours and that he did not
o ffer the defendant a

ny field sobr

iety tests. O

rdinarily, Chief Richardson g

ives at least thre

e field sobriety tests: the finger-to-nose; heel-to-toe; or have a suspect repeat their A-B-C's or stand on one foot. He did not do these t ests that night sin ce they were concentrating on appre hending Honea. Chief Richardson stated that he knew the defendant had refused a breathaly zer test. Chad Partin, a

Coffee County Sheriff's Deputy , testified that he and Chief Richardson were looking for a man

, Alfred Honea,

on September 25, 1998. Deputy Partin stated that he saw Honea ina vehicle driven by the defendant on J.D. Neal Road. Deputy Partin testified that when the car stopped, he chased Honea and did not have anything to do with the defenda nt. William Marcom, an investigator for the Coffee County

Sheriff's Department, testified that he responded to an assist ca ll to apprehend Honea. He stated that as he got to the scene, a subject f rom the back seat of a patrol car hollered at him. Marcom did not know the defendant and when Marcom opened the driver's door

of the patrol car, the subject asked him about some dogs that were inthe car. Marcom testified that he could smell a strong odor of an alcoholic beverage coming from the patrol car. He noticed that the defendan t's speech wa s slurred. It was fairly warm t hat evening,
swe aty, and

the subject

appeared to be d

runk. It appe

ared to Marcom th

at the defendan

t was heavily under the influence. During cross-examination, Marcom stated that he was with the defendant about thirty (30) seconds. Marcom testified that he did not give

the defendant a

ny field sobr

iety tests and that the defendant was in the patrol car most of that night. The defendant elected not to testify in his own behalf.

LEGAL ANALYSIS SUFFICIENCY OF EVIDENCE

The defendant asse

rts that the recor

d is devoid of any corroborating evidence, such as physical evidence, to support the cursory conclusions of Deputies Richard

son and Marcom,

that the defendant
was intoxicated. Furthermore, the testimonies of the deputies were so inconsistent, that this Court must resolve these

conflicts in favor of the defendant. The State contends that this Court must, in the light most favorable to

the State, find tha

t the evidence is s

ufficient to supp ort the defendant’s conviction.

Tennessee Rules of Appellate Procedure 13(e) prescribes that “findings of guilt in criminal actions whether by

the trial c our t or jury shall be set aside if the evidence is insufficient to support the findings by

the trier of fac

t of guilt beyond a re

asonable doubt.” When an accused challenges the sufficiency

of the convicting evidence, the standard is, whether after reviewing

the evidence in the light most favor able to the pr osecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the-4-

trier of fact, not t

h is Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this Court reweigh or

re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A verdict approved by the trial court accredits the State’s witnesses and resolves all c

onflicts infavor of the State. S tate v. Grace, 493 S.W.2d 474, 476 (T enn. 1973). On app

eal, the State is entitled to the strongest l

egitimate view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replacesit with a presumption of g

uilt, the accused

has the burden in th

is Court, of illustrating why the evidence is insufficient

to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Although t his c ause in

volved a bench trial, the findings of the trial court who conducted

the proceeding carry the same weig ht as a jury verdict. State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). In the case sub judice, the elements necessary to establish the offense are: (1) that the defendant was driving or was in physical control of an automobile or motor driven vehicle; (2) that this act occurred on a public road or highway or public street or alley; and, (3) that the d efendant was und er the influence

of an intoxicant to the

extent his ability

to operate a motor vehicle was impaired. See Tenn. Code Ann. § 55-10-401.

We find the evidence in this ca se supports the defendant’s conviction for driving under the influence. Chief Richardson, while looking for an escaped

inmate, observed the defendant driving his motor vehicle on a public road in Coffee Coun ty. Upon stopping the defendant’s car, the passenger, Honea, fled and Chief Richardson s

ecured the def

endant. Chief Richardson smelled an alcoholic beverage (be

er), although th

ere was a con fli ct i n Ch ief

Ric hard son ’s r epo rt m ade f our days after the arrest. Richardson testified that the defendant’s speech was slurred and he was unsteady on his feet. In Chie

f Richardson’s e

xperienced opinion

, the defendant w

as moderately

intoxicatedand should not be operating an automobile. The fact that Chief Richardson did not have the defendant undergo some field so

briety te sts went to the witness’s credibility which was resolved by the tria l court. The record reflects that the trial court was very impressed with Chief Ric hard son ’s t est imo ny. In vestigator Willia

m Marcom testified

that during his thi

rty (30) se cond encounter w

ith the defendant

, he smelled a strong odor of an alcoholic beverage coming from the patrol car occupied by

th e defendant. The defendant’s speech was slurred and in M a rcom’s opinion, the defendant was too heavily intoxicated to be driving. There is no merit to this assignment of error.-5- SENTENCING HEARING

Inthis issue, the defendant complains that the trial court’s sentence of nine (9) months for a third offense of driving under the influence conviction was excessive. Further, the de fendant would assert that the trial court’s acquittal of him on aiding a fugitive influenced the trial court's decision to double and then some the minimum sentence for a third offense of driving und er the i nfluence conviction. The State asserts that the defenda

nt had two prio

r convi ctions for driving under the influence of an into xicant and fai led to be interviewed by the pre-sentence officer , thus the record fully supports the trial court’s judgment.

Ms. Laura Prosser, Pre-Sentence Officer for the Department of Correction, testified that she prepared an abbreviated pre-sentence report on the defendant. The pre-sente nce report was marked
as an exhibit to her test

imony. Ms. Prosser

stated that the defendant was convicted of driving under the influence on Dec

ember 12, 1991, se

ntenced t o el even (11 ) mo nth s an d tw ent y-ni ne (2 9) d ays suspended

after the service of forty-eight (48) hours, two hundred and fifty dollars ($250) fine, and costs. The defendant’s license was revoked for one ye ar. The defenda

nt was convicted on July 3, 1991, for public

intoxication when he forfeited a cash bond. On September 2, 1982, the defendant
was convicted of DUI, sentenced to six (6) months suspended after service of forty-eight (48) hours and a fifty dollar s ($50) fine and costs. Ms. Prosser testified that she attempted to interview the defendant but he failed to appear after notification was sent to him and his attorney. The defendant did not testify at this sentencing hearing.

The record reflects the trial court was cognizant that when a defendant is convicted of a nonviolentcrime, he is if at all possible to be sentenced to punishment other than incarceration. The trial court found no mitigating factors, but found some enhancing factors. In lig ht of the defendant’s prior convictions for DUI, the

trial court affi

rmatively found that confine

ment is absolutely

necessary

to avoid depreciating the seriousness of the offense and confinement is particularly suited to provide an effective deterrent to others prone to commit this type of offense. The trial court commented, “I feel it is my duty as a trial judge when people have multiple offense DUI’s, if I can’t do any thing else, I
can keep them off the road where they don’t run over someone else in that condition.” The trial court imposed a one thousand five hundred dollars ($1,500) fine, an eleven (11) month and tw enty-nine (29) day sentence, and required the defendant to serve nine (9) months. The defendant would serve the balance of his sentence on probation. The judgment order reflects that the defendant shall serve this sentence at 7 5 percent minimum service prior to program or work release, which this Court construes to be nine (9) months confinement.

When a defendant challenges the length, range, or manner of service of a sentence, this Court conducts a de novo review

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). The
s entence is presumed correct if the record affirmatively shows that the tria l court considered

th e sentencingprinciples and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has th e burden of showin

g that the senten

ce is improper. Tenn. Code Ann. § 40-35-401(d). Sentencing Commission Comments. Our review of the record

reflects that the-6-

trial court considered the sentencing principles of the Tennessee Sentencing Act of 1989, therefore, our review is with a presumption of correctness.

Convictions for DUI are controlled by Te nnessee Code Annotated § 55-10-403(a)(1). At the time of this defendant’s conviction, both third and subsequent DUI convictions provided for a sentence of confinement “not less than one hundred twenty (120) days and not

more than eleven (11) months and twenty-nine

(29) days.” Tenn. Code Ann. § 55-10-403(a)(1). Furthe r, the statute for DUI convictions provid

es that: all persons sentenced under subsection (a) shall, in addi

tion to the service

of at least the minimum sentence, be required to serve the diffe

rence between

the time actually served and the maximum sentence on probation.

Tenn. Code Ann. § 55-10 -403(c). Accordingly, the length of a de fendant’s sentence for a third or subsequent

offense of DUI is set

at eleven (11) mo

nths and twenty

-nine (29) day

s. While trial courts cannotdeviate from the length of the DU

I sentence,

trial courts do re

tain some discreti

on i n determining what portion of the eleven (11) month and twenty-nine (29) day sentenc e a defendant will
serve in confinement. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). Also, since this DUI convictio n is a Class A misdemea nor, the sentenc

ing principles a

re controlled by

Tennessee Co d e Annotated

§ 40-35-302. I

n part, this statute

provides that the t

rial c ourt shall impose a spec ific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offe nder must be sentenced to an authorized determinate sentence with a percentage of that sentence desig nated for eligibility for re habili tative programs. See State v. Tony Randall Johnson, No. 01C01-9812-CC00486, 1999 WL 743614 *3 (Tenn. Crim. App. Sept. 24, 1999).

Inthis case , the trial court enhanced the defendant’s sentence from the minimum of one hundred twenty (120

) days, for a third offe

nder DUI con

viction, to

ele ven (11 ) mo nth s an d tw ent ynine (29) days. The trial court set the percentage of co nfinement at 75 percent. Due to the defendant’s prior

convictions for DUI, the trial court believed that incarceration was warranted due to the seriousness of the offense and a deterrent to others of like mind. We believe the trial court was correct in c onsidering the seriousness of the defendant’s commission of this offense. However, deterrence as a reason for incarceration is questionable, in that there is no proof in the record that such incarceration

would act

as an effective

deterrent to othe

rs. The defendant had previous convictions for DUI’s and failed to coop

erate with the pr

obation office in

compiling the pre-sentence report. The defendant was given an opportu

nity to enlig

hten the trial cou

rt as to his past history

and the possibility of rehabilita

tion fo r alcohol abuse, but he elected not to testify. We believer these are prope r considerations by the trial c ourt in setting the defendant’s sentence at eleven (11) months and twe ntynine (29) days with a confinement period of nine (9) months before being placed on probation. We find, absolutely no proof in this record that the trial court increased the period of confinement on

the basis that the defendant

was aiding a fugitive. The length of the sentence imposed by the trial court was proper.-7-

The trial court’s judgment is affirmed.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE