# FILED September 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9811-CC-00474 Appellee, ) ) Marshall County v. ) ) Honorable Charl es Lee, Judge WILLIAM D. DAVIS, JR., ) ) (Failure to Appear) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : GREGORY D . SMITH PAUL G. SUMMERS Contract Appellate Defender Attorney General & Repor ter One Public Square, Suite 321 Clarksville, TN 37040 CLINTON J. MORGAN (On Appeal) Assistant Attorney Gener al 425 Fifth Avenue North DONNA L. HARGROVE Nashville, TN 37243-0493 District Public Defender WIL LI AM MI CH AE L M cC OWN ANDREW J. DEARING, III District Attorney General Assistant Public Defender 105 South Main Street MICHAEL D. RANDLES P. O. Box 1119 Assistant District A ttorney General Fayetteville, TN 37

334-1119 215 East College Street (At Trial and On Appeal) P. O. Box 878 Fayetteville, TN 37

334-0878

OPINION FILED: ____________________________

_________ AFFIRMED ALAN E. GLENN, JUDGE2 

### O P I N I O N
On October 12, 1998, a Marshall County jury found the defendant, William D. Davis, Jr., knowingly failed to appear for an August 13, 1998 tr ial in violation of Tenn. C ode Ann. § 39-16-609 (1997). The trial court sentenced him to serv e eleven months and twenty -nine days in the county jail. This sentence was to run consecutively with his sentence for dr iving with a revoked license, the charge for which he

was to have been tried

on August 13, 1998. The defendant appealed as of right, listing tw o assignments of error, that the evidence was insufficient for a finding of guilt and he received an exces sive sentence. Based upon our review of this matter, we affirm the decis ion of the trial court.

FACTS OF TH E CASE
The defendant was fou nd guilty of drivi ng on a revoked licens e in Lewisburg City Court. He appealed to the Mars hall County Circuit Court. On August 5, 1998, he was p resentin circuit court to s elect a trial date. The tri al court announced th at he would b e tried at 8:30 a.m. on August 13, 1998. He signed an appearance bond an d was released from custody on Aug ust 5, 1998. However, on Augus t 13, 1998, the defendant did not appear for trial. A

Lewisburg police o

fficer, Larry Barker, r

eceived an arrest w

arrantfor the defendant, but could not l ocate him. T he defendant turned himself in at th e Lewisburg police station on the morning of Augus t 14, 1998, walking into the po lice station and climbing the stairs unaided to surrender.

In a court appearance on August 19, 1998, the defe ndant stated he was not in court on August 13, 1998, because he was confused about the dat e he wasto appear. He was indicted for failure to appear p ursuant to Tenn. Code Ann. § 39-16-609 (1997), and was tried for this charge on O ctober 12, 1998.

At his October 12, 1998 trial, the defendant presented evidence that he had suffered a back injury on Augus

t 11, 1998. Dr. John Brew er treated the defendant for neck or back strain on August 11 and 12, 1998. Dr. Brewer prescribed pain medication an d ordered him3

to stay in bed for twenty -four hours on August 12, 1998. However, Dr. Brewer testified that the defendant

’s inju ry and c

ourse of t reatmen t would not have prev ented his coming to court the following day for the trial.
NancyBrown, the d efendant’s mother, testified that w hen the defendant came to her house on A ugust 11 and 12, 1998, he had either walked or ridden his

bicycle the approximate two and one-hal f mile distance each way.

Linda Perkins, the defendant’s sister, testifie d she took him tothe Marshall Medical Center on August 12, 1998. Perkins stated that the defendant was barel y able to walk on August 13, 1998. Perkins said she phoned the court clerk’s office the morning of August 13, 1998, to tell someone that he could n ot be in court. On cross-examination, Perkins stated that she could not remember what she said or to whom she spoke . Pe rkins also admitted she told O fficer Barker she had not seen the defendant on August 14, 1998, when in fact he w

as aslee p in her

home. Aft

er Perk ins tol d the defe ndant th at Offi ce r Barker was looking for

him, the defendant went to the police station and turned himself in.
The State presented evidence that the defendant did not mention a back injury or that he required bed rest unti l his Oc tober 12, 1 998 trial. The State also pres ented evidence that the defendantwas walking and moving around well

on the morning of

August 14, 1998 , contrad icting his claim of a debilit ating bac k injury.

After due deliberation, the

jury found the defendant guilty of failure to appear. The trial co urt sentenced him to the maximum t erm of eleven months and twenty -nine days , and ordered that his sentence ru n consecutively w ith his sent e nce for the driving on a revoked license conv

iction. The defendant timely appeal ed.

DIS CUS SIO N OF LAW A. Sufficien cy of the Ev idence When a chall enge is

made to t he suff iciency of the evidence, the standard for4

appellate review is w

hether, after considering the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560 (1979). The def endant' s burden of showin g insuff iciency i s heavy, since all conflicts in testimony

are resolved in favor

of the State, and the State is entitled to the strongest legitimateview of the evidence as well as all reasonable or legi

timate inferences that

may be drawn therefrom. State v. Burns , 979 S.W.2d 276, 28 7 (Tenn. 1998).

To obtain a conviction for fail ure to appear, the State must prov e the de fen dant “[h]as been lawfully releas ed from custody, with or w ithout bail, on condition of subsequent appearance at an offi cial pro ceeding or penal institution at a specified time or plac e.” Tenn. Code Ann. § 39-16-609(a)(2) (1997). A defense to a charge under this secti on i s that “[t]he person had a reasonable excuse for failure to appear at the specified time and place.” Tenn. Code Ann. § 39-16-609(b)(1). Since the defendant admits he did not appear forhis August 13, 1998 trial date, the only question we must address is the reasonableness of his excuse.
Although the defendant claimed he had a debilitat ing back injury that prevented him from appearing in court on August 13, 1998, the State pre sented ev idence to rebut this claim. Dr. Br

ewer te stified he treat ed the de

fe ndant fo r neck or back strain, but that his condition would not have prevented the defendant’s appearance in c ourt on August 13. The defendant’s sister gave conflicting and confusing testimony about reporting his injury to the clerk’s office and about his activities on Aug u st 14, 1998. The State introduced evidence that the defendantknew his court date w as August 13, 1998 and that he did not mention a back problem as being the reason for his nonappearance, when he did appear before the trial court on Aug ust 19.

A jury verdict, approved by the trial judge , accre dits the State’s witnes ses and resolves all conflicts in favor o f the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Taking theevidence i n the light most favorable to the State, the evidence is5

sufficient to support the convi ction.
B. Length and Manner of Sentence The defendant next challenges the t rial court’ s imposition of sentence. When an accused challenges the length, range, or manner of servi ce of a sentence, this Court has a duty to conduct a

de novo review of the sentence w ith the presumption that the determinationsmade by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). In conducting a de novo

review of a sentence, th e Court must consider: (a) the evidence, if any, received at the

trial and t he sentencing hearing; (b) the presentence report; ( c) the principles of sentencing an d arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct inv olved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made o n his own behalf; and (g) the potential or lack of potenti al for rehabilitation or tr eatment. Tenn. Code Ann. §§ 40-35-102, -103, & -210. See State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). In felony cases, the presumption of correctness is "conditioned upon the affirm ative showing in the record that the trial court considered the sentencing principles and all relevant f acts and ci rcumstances.” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). However, the Supreme Court has held tri al judgesin misdemeanor cases are not required to make specific findings of fact on the r ec ord re garding sentencing decisions. State v. Troutman , 979 S.W.2d 271, 27 3-74 (Tenn. 1998).

Consecu tive sentencing is gov erned by Tenn. Code Ann. § 40-35-115 (1997). This section allows consecutiv e sentencing at the discr etion of the trial court if one of the seven statutory criteria is found to ex ist by a preponderance of the evidence. The trialcourt found that § 40-35-115 (2) (“The defendant is an off ender whose record of criminal act ivity i s extensive”) applied in this case. In addition to the statutory requirements of § 40-35-115, the Supreme Court has imposed three add itional re quiremen ts for con secutive sentencing. First, the trial c ourt mus t find co nsecutive sentences are reasonably related to the severity of the offenses committed. Second, the t rial court must find consecutive sentences are necessary to protect the public from further criminal conduct. Third, consecutive sen tences6

must be consistent with g eneral principles of sentencing. State v. Wilkerson , 905 S.W.2d 933, 937-39 (Tenn. 1995).

In the case sub

judice , t he trial court found one mitig ating factor present, that serious bodilyinjury was neith er caused nor threatened. See Tenn. Code Ann. § 40-35- 113(1) (1997). The trial court also found two enhancement fa ctors, a prior criminal history and a history of unwill ingness tocomply withthe conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114 (1) & (8) (1997).

In fact, th e defe ndant ’s prior criminal hi story consists of more than twenty misdemeanor

and four fel ony convict ions. He also committed an offense w hile on probation. Based on this history,the trial court imposed a s entence of eleven months and twenty-nine

days to be served cons ecutively with the defendant’s sentence for drivingon a revo ked license. Based on our de novo review with a presumption of correctness, w e find no error in the decisi on of the trial court.
This assignment has no merit.
For the foregoing reasons , we affirm the decision of the tr ial court.

________________

________________

_______ _ ALAN E. GLENN, JUDGE CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOE G. RILEY, JUDGE