# FILED
March 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 01C01-9705-CC-00199 Appellee, * FRANKLIN COUNTY VS. * Hon. Buddy D. Perry, J udge RICHARD D. SAWYER, * (DUI, Third Offense and Driv ing on a Appellant. * Revoked License, Second Offense)

For Appellant : For Appellee : Robert S. Peters John Knox Walkup Swafford, Peters & Priest Attorney General and Repor ter 100 First Avenue, Southw est Winchester, TN 37398 Ruth Anne Thompson (at trial and on appeal) Counsel for the State 425 Fifth Avenue North Timothy Priest Cordell Hull Buildi ng, Second Floor Swafford, Peters & Priest Nashville, TN 37243-0493 100 First Avenue, Southwest Winchester, TN 37398 Stephen M. Blount (at sentencing) Assistant District A ttorney General 324 Dinah Shore Boulevard Winchester, TN 37398

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Richard D. Sawy er, was convicted o

f driving under the influence, third offense, and driv ing on a revoked lic

ense, second offense. The trial court imposed concurrent sent ences of eleven months and twent y-nine days for driving under the influence and ninety days for dr iving on a revoke

d license. See Tenn. Code Ann. §§ 55-10-401(a) and 55-50-504(a)(1). The defendant w as fined $1,050.00.
In this appeal of right, the de fendant challenges the sufficiency of the evidence and argues that the sentence was excess ive. We affirm the judgment of the trial court.

At 1:16 A.M. on April 4, 1995, Cowan Assistant Polic e Chief Tony Bean observed a brown F ord LTD veer several

times outside of its line of tr affic. Officer Bean, accompanied by Officer C hris Fann, stopped the vehi cle and determined that the defendant, the only occupant, was the driv er. When the defendant stepped out of th e car, Officer Bean smelled alcohol and could see vomit on the defendant's pants and shirt. The defendant explained that he had been playing pool at the Pit

Stop when he became ill and dec ided to go home. When asked whether he needed an ambulanc e, the defendant declined. Officer Bean then administered four field sobriety tests, all of which, i n the officer's opinion, the defendant failed.

Later, Officer Bean learned that the d efendant's driver's li cense had been revoked and that he had been i ssued a restricted lic ense. When asked about this, the defendant admitted that he w as not allowed to be driv ing after 1:00 A.M. The restricted license w as for transportation to and from w ork only.3 The defendant declined a blood alcohol tes t. At trial, Officer Bean recalled that the defendant expla ined that he had not taken his medicine and that he had a physical ailment that made it difficult for him to stand. Ther e was a medicine bottle found in the front seat of the car. Officer Bean remembered that both the vomit and the breath of the defendant smell ed of alcohol.

Officer Fann recalled seeing the defendant's car weave b ack and forth across the yellow

and white line before Officer Be an turned on the blue lights and siren. He testified that he ob served each of the field sobri ety tests. Officer Fann also came to the conclusion that the defendant was too intoxi cated to be driving.
The defendant, a security guard at Shaw Industry, tes

tified that he had a restricted driver

's license at the time of his arrest which allow ed him to drive to and from work. He claimed that his hours varied at hi s place of employment and that he was under the care of a physician for both depression and epileptic seizures. He explained that he had been prescribed Perphenazine which he was required to take each day for his epilepsy

.

The defendant insisted that he had not consumed any alcohol prior to his arrest and had stopped at th e Pit Stop only to play pool and drink Coca-Col a. The defendant testified that he became ill and that a patron from Chicago, w ho was quite intoxicated, tr

ied to assist him but threw up on him and spilled whi skey on him. The defendant stated that he was on his way to his place of em ployment to find his medicine when he was st opped by the police. He cl aimed that his seizure had passed before he began to operate his car and that his driv

ing might have appeared erratic because the officers w ere following too clos

ely behind. He claimed that he began to have another seizure at the time Officer Bean began to administer the field4 sobriety test.
Defense witness Bill Williams, w ho arrived at the Pit St

op between 7:00 and 8:00 P.M. prior to the arrest, testified that he did not see the defendant drink alcohol on the night in question. When W illiams offered the defendant a drink, the defen dant res ponded, " I can't,Bill, I 'm on medi cation. " Williams , who l eft between 10:30 and 11:00 P.M., r ecalled that there was a man from Chicago at the Pit Stop who was int

oxicated. He testified that the defendant was not under the influence of alcohol when last seen.

After the jury found the defendant guilty of driving under the inf luence and driving on a revoked license, the state presented documents establishing his prior convictions on

each of the offenses. In consequence, the t rial judge concluded that the defendant was guilty of driving under the influence, third offense, and driving on a rev

oked license, second offense.
In this appea l, the defendant complains that drivi ng from a "recreational establishment to his place of employment for the pur pose of procuring needed medicine," was "within the scope of his restricted [driver's] license." He insists that there was insufficient evidence of any consumption of alcohol on his part. He claims that the co rroborated "story about the man from Illinois who w as drunk, irrational, and pos sessed with a propensit y to propel vomit on the helpful and unwary" was an adeq uate explanation of the incri minating circumstances.

On appeal, however, the s tate is entitled to the str ongest legitimate view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the5 witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the evidence are matters entrusted exclusiv

ely to the jury as the triers of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A g uilty verdict, approved by the trial

judge, accredits the tes timony of the state's witnesses and resolves all conflict

s in the evidence favorabl e to the theory of the state. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).

Two law enforcement officers w ere of the opinion that the defendant was intoxicated. C learly, the defendant was driving his automobil e on a revoked license and after the time authori zed by his restri cted use. The jury chose th e accredit the testimony of the prosecution witnesses and reject that of the defense. That was their preroga tive. In our view , a rational trier of fact coul d have found the essential elements of each of the cri mes beyond a reasonable doubt. Tenn. R. App. P. 13(e). The evidence of the defendant' s guilt more than satisfied the prescribed standard. Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781 (1 979).

The defendant also complains that the sentence was excessive. He argues that the trial co urt should have imposed the mi nimum penalty of one hundred twenty days as pr

escribed by the legi slature. We disagree.
In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence.Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with t he princ

iples, purpose

s, and g oals of t he Crim inal Sentencing Reform A

ct of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to6 an authorized determinant sent ence with a percentage of tha t sentence designated for eligibility for rehabilitative prog rams. Generally, a per centage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Id. at 393-94. In determining the percentage of the sentence, the court must consi der enhancement and mitigating factors as well as the legisl ative purposes and principles related to sentencing. Id.

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to direct ing supervision by the Department of Correction. Tenn.Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . "The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence." State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

The state established a signi ficant criminal history

on the part of the defendant. His violation of the terms of his restricted li cense indicates an unwillingness to c

omply with conditions

of release. While one of the convictions here was for driving under the influence, third offense, this is actually his fou rth such offense over a thirteen-year period. Apprised that the defendant and his wife had medical problems, the trial court imposed the maximum sentenc e for driving under the influence but ordered the sentenc e for driving on a rev

oked license to be7 concurrently serv

ed. The primary basis for th e imposition of a sentence above the minimum for driving under the influence was the defendant's l engthy history of drinking and driving.

In our view, the trial court addressed the appropriate factors in considering the sentence to impose. The defendant has failed to rebut the presumption of the correctness of the sentence.

The judgment is, therefore, affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ William M. Barker, Judge

_____________________________ Curwood Witt, Judge