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

STATE OF TENNESSEE v. HELEN DIXON DEVERS

Appeal as of Right from the Circuit Court for Wayne County No. 11671 and 11672 Stella Hargrove, Judge

No. M1999-00427-CCA-R3-CD - Decided June 23, 2000

Helen Dixon Devers appeals her conviction by a j ury in the Wayne County Circuit Court of one
count of driving under the influence, firs t offense, a cla

ss A misdemeanor, and one count of resisting arrest, a class B misdemeanor. Pursuant to the appellant’s conviction of driving under

the influence, first offense, the trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Wayne County Ja

il, suspending all bu

t ninety days. Pursuant to the appellant’s conviction of resisting arrest, the tria

l court imposed a c

oncurrent sentence of six months incarceration in the Wayne County Jail, again suspe n ding all but ninety days. On appeal, the appellant presents the following issues for revie w: (1) whether th

ere was suffici

ent evidence to su

stain both convicti

ons; and (2) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties’ briefs, we affi rm the judgment of th

e trial court.

Tenn. R. App. P

. 3 Appeal as of Right; Judgment of the Cir

cuit Court is Affi

rmed.

O GLE , J., delivered the opinion of the court, in which Hayes, J., and Smith, J., joined.

R.H. Stovall, Jr., Col

umbia, Tennessee

, for the appella

nt, Helen Dixon De

vers.

Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, J r., Assista

nt Attorney General, J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. Factual Background On the night of November 1 1 , 1997, Officer Curtis Nutt witnessed the appellant driving slowly and erratically, leading the officer to believe that she was intoxica ted. After activating a video camera in his police car, Officer Nutt pulled the appellant over and asked her

to submit to field sobriety tests. According to Officer Nutt, the appellant failed

these tests. Moreover, when Officer Nutt tri

ed to arrest the a

ppellant, she bec

ame“quarrelsome” and

“mouthy” and cursed Officer Nutt. Officer Ge

rald Henderson t

hen arrived at th

e scene of the tr

affic sto p and assisted Offic erNutt

in taking the appellant into custody. Following the appellant’s arrest, the officers
tra nsported the appellant to W ayne County Hospita

l, where testing r

evealed that the

appella n t possessed a blood alcohol content of .19 percent. Following a jury trial, the appellant was convicted of driving under the i

nfluence (DUI) , first

offense, and resisting arrest. The appellant was sentenced-2-

to eleven months and twenty-nine days incarceration for DUI an d to six months incarceration for resisting arrest

, with the sentences to be served concurrently. The trial court granted the appellant probation in both cases, suspending all but ninety days of each sentence of confinement.

II. Analysis A. Driving Under the Influence 1. Sufficiency of the Evidence. The appellant challenges the sufficiency of the evidence underlying her conviction of DUI. We initially n ote th at the appellant fails to state the grounds on which she claims the evidence is insufficient. Merely challenging the sufficiency of the evidence at trial witho u t specifying the grounds on whic h the claim is based

is so general it

fails to meet the r

equirements

of Rule 27(a)(4) of the Tennessee Rules of Appellate

Procedure. See State v. Matthews , 805 S.W.2d 776, 778-79 (Tenn. Cri

m. App. 1990); State v. Allison , No

. 01C01-9402-CC-00061,1995 WL 60006, at *3 (Tenn. Crim. App. at Nashville, February 14, 1995). Nevertheless, upon review of the limited record available, we conclude that there is sufficient evidence to support the appellant’s convi ction of DUI.

Tennessee appellate courts accord considerable weight to a jury verdict in acriminal trial. A jury conviction essentially removes the pre sum ption of the defendant’s innocence and replaces it

with a presumption of guilt, so the appellant carries the burden of demonstrating to this
court why the evidence wil

l not support the jury’s findings. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

Onappeal the State i

s entitl ed to the strongest legitimate view of the evidence and all reasonable i

nferences whic

h may be dra

wn therefrom. State v. Williams
, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate courts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990).

Driving under the influen ce is defined in Te

nn. Co de An n. §55-10-401(1) & (2) (1998) in the following manner: ( a) It is unlawful f

or any per

son to drive or to be

in physical c

ontrol of an y automobile

or other motor dri ven veh icl e on any o f th e pu bli c roa ds a nd h ighw ays of the state . . . while: (1) Under the influe

nce of any

intoxicant . . . produc

in g stimulating effects on the central nervous system; or (2) The alcohol concentration i n such person's bl ood or breath is ten-hundredths of one percent (.10%) or more.

Officer Nutt testified that the appellant had been driving her car on a public road

in Tennessee. Testimony established that she had a blood alcohol level of .19 percent at the time she-3-

was driving. The off

icers testified c

oncerning her

apparent drunke

nness. Specifica

lly Office r Nutt testified th at the appellant was driving slowly and erratically , that she appeared to cross both the yellow and white lines of the highway, and that she failed several

field sobriety

tests. Given these facts, there wa

s sufficient evide

nce to convict the

appellant of DUI

. This claim is withou

t merit.

2. Sentenc ing. N e xt, the appellant ass

erts that the tria

l court erred in r

equiring her to s

erve ninety days incarceration in the Wayne County Jail. Appellate review of the manner of service of a sentence is de novo. Tenn. Code Ann. § 4 0-35-401(d) (1997). In conducting its de novo review, this court considers the following fa ctors: (1) the ev

idence, if any

, received at the

tria l and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arg uments as to sentencing alternatives;

(4) t he nature and characteristics of the criminal conduct involved; (5) evidence and informationoffered by the parties on enhancement and mitigating factors; (6) any statement by the defendant in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also State v. Ashby
, 823 S.W.2d 166, 168 (Tenn. 1991). The trial
court must also keep these factors in mind when imposing sentences invol ving a ny sort of confinement. Tenn. Code Ann. §40-35-103(1). The sentencing considerations particularly relevant indeciding the manner of service of misdemeanor and felony sentences are codified

at Tenn. Code Ann. §§40-35-102, -103. See also State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998). If the record reveals that the trial court properly considered sentencing principles and all relevant facts and circumstances,

this court will accord the trial court’s determin ations a presumption of cor

rectness. Tenn. Code Ann. § 40-35- 401(d); Ashby ,823 S.W.2d at 169. I n any event

, “a trial court n

eed only

c onsider the principles of sentencing and enhancement and mitigating factors in order to c omply wit h the legis lat ive mandates of the misdemeanor sentencing statute.” Troutman , 979 S.W.2d at 274. Nevertheless,

the burden is on the

appellant to demon

strate the impropr

iety of her sentence(s). Tenn. Code Ann. § 40-35-

401, Sentencing

Commission Comments.

The trial court has the authority to place a misdemeanant on probation either aft e r service of a portion of the

sentence in

confinement

or immediately after sentencing. Tenn. Code Ann. §40-35-302(e)(1)-(2) (1997). However , in a case of DUI

, first of fense, a defendant must serve a minimum period of forty-eight hours incarceration. Tenn. Code Ann. §55-10-403(a)(1)(1998). In th is case, the trial court consid ered two factor

s in requiring a l

engthier perio

d of confinement i

n conjunctionwith probation. Fi rst, the trial cour

t felt that “confi

neme nt [is] nec essary to a void depreciating

the seriousness of the o f

fense,” a legitimate sentencing consideration. Tenn. Code Ann. § 40-35-103 (1)(B) (1997 ). When mak ing a decisi on regarding confi nement because of the seriousness

of the offense, a

court should consid

er if "the circumstances of the offense as committed [are] especially violent, horrifying, shoc king, reprehensible, offensive, or otherwise of an excessive

or exaggerated degree.” See State v. Zeolia , 928 S.W.2d 457, 462 (Tenn.Cri m.App. 1996); see also State v. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995)( citing State v. Hartley , 818 S.W.2d 370, 374-375 (Tenn.Crim.App.1991)). This court recogni ze s the dangers of driving under the influence, dangers which are especially ag gravated when the blood

alcohol content of the dri ver is wellin excess of the legal limit. See State v. Zaid , No. 01-C-01-9703-CC-00081, 1998 WL 118071, *4 (Tenn.Crim.App. at Nashville, March 17, 1998), perm. to appeal denied (Tenn. 1998), State v.-4-

Park er , No. M1999-00-209-CCA-R3CD, 1999 WL 1296018, *3 (Tenn. Crim. App. at Nashville, December

30, 1999). The legislature also recognized the increased seriousness of driving under the influence of an excessive blood alcohol content by enhancing the minimum period of incarceration for a first offense DUI to seven days ra ther than forty-eight

hours if the blood alcohol content is .20 percent,only one-hundredth of a perce nt more than the appellant’s blood alcohol content of .19. Tenn. Code Ann. §55-10-403(a)(1) (1998). Because the blood alcohol content of the appellant was wellin excess of the legal limit, we conclude that the trial court correctly considered the se

riousness of the offense in determining the DUI sentence.

Moreover, at the sentencing hearing, the trial court placed emphasis on its belief that the appellant was untruthful in stating to the court that she had only consumed three beers on the evening in question. In State v. Bunch , ou r su prem e cou rt h eld tha t tr uth ful nes s is cert ain ly a factor which the court may consider in making decisions reg arding the manner of service of a sentence. 646 S.W.2d 158, 160 (Tenn.1983). See also State v. Dykes , 803 S.W.2d 250, 259-60 (Tenn. Crim. App.1 990); State v. Chrisman , 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). As we stated earlier, the credibility of witnesses is determined by the trier of fact, and not the appellate courts. Pruett ,788 S.W.2d at 561. The trial court corr

ectly appli

ed this factor in it

s sentencing determination.

If appellate review reveals that the trial court properly considered all relevant factors and its findings of fact are adequately suppor ted by the record, this court must affirm the
sentence. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App.1991). It is clear that the trial court correctly applied the sentencing considera tions to the driving under the influence conviction, and th

erefore the tr

ial court’s deter

mination is presume

d correct.

B. Resisting Arr

est. 1. Sufficiency of the Evidence. The appellant also challenges the sufficiency of the e vidence used to convict her of resisting ar

rest. Before a

n accused can be

convicted of res

isting arrest, th

e State is require

d to prove that (a) the accused knew that the person attempting to arrest her was a law enforcement officer; (b) the defendant attempted to prevent or obstruct the arrest; (c) the defe ndant used force; and (d) the defendant's conduct was intentional. Tenn. Code Ann. § 39-16-602(a) (1997). Forc e is defined as “co

mpulsion by the

use of physic

al power or viole

nce and shall be b

roadly construed to accomplish the purposes of this title.” Tenn. Code Ann. § 39-11-106(a)(12) (1997). See State v. Tidwell , No. 01C01-9807-CC-00288, 1999 WL 436840, *2 (Tenn. Crim. App. at Nashville, June 30, 1999), perm. to appeal denied (Tenn.1999), State v. Isibor , No. 01C01-9610- CC-00441, 1997 WL 602945, *2 (Tenn. Crim. App. at Nashville, September 30, 1997), perm. to appeal denied

(Tenn.1998). The appellant has failed to include in the record for our review a copy of the video tape that was heavily relied upon in the trial court to convict her of resisting arrest. From the

evidence in the r

ecord, it is diffic

ult to determine if

the appellant wa

s merely “mouthy” or if she actually used for ce in some way against one or both of the officers. How ever, it is the appellant's duty to provide a complete record, and where she has failed to do so, she has no cause for complaint. Troutman , 979 S.W.2d at 274 . See also State v. Ballard , 855 S.W.2d-5-

557, 560 (1993); State v. Oody , 823 S.W.2d 554, 559 (T enn. Crim. App.1991 ). Failure to provide an adequate record results in the waiver of this issue on appeal. Tenn. R. App. P. 24. The jury’s conviction of the appellant for resisting arrest is aff irmed.

2. Sentenc ing. The appellant also contends that her sentence for resisting arrest is excessive. Once again, the piece of evidence that would have aided this court in making that deter mination, namely the v

ideotape made by

Officer Nutt, is n

ot in the record f

or our review. A

lthough some evidence relevant to sentencing is found in the statement of the evidence summarizing the testimony at t

he sentencing h

earing, little e

vidence rega

rding the circu

mstances of the of

fense is included in this incomplete record. Because the burden is on the appellant to provide a record for review, failure to do so is considered a waiver of the issue. Tenn. R. App. P. 24. See Troutman
, 979 S.W.2d at 275. The sentence for resisting arrest is affirmed.

III. Conclusion For the foregoing reasons, we affirm the judgment of the trial cour t.