# FILED
October 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 03C01-9707-CR-00287 Appellee ) ) KNOX COUNTY vs. ) ) Hon. RAY L. JENKINS, Judge CHARLES LEROY WOODS, ) ) (Resisting Arrest, Disorderly Conduct, Appellant ) Public Intoxication)
For the Appellant : For the Appellee : Will iam L . Bro

wn John Knox Walkup 706 Walnut Street Attorney General and Repor ter Suite 902 Knoxville, TN 37902 Michael J. Fahey, II Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
Randall E. Nichols District Attorney General Zane Scarlett Asst. District Attor

ney General City-County Buil ding Knoxville, TN 37902

OPINION FILED: AFFIRMED AS MODIFIED
David G. Hay

es Judge2 OPINION
The appellant, Charles Leroy Woods, appeals from the Knox County Crimi nal Court jury verdi ct finding him guilty of the misdemeanor offenses of resisting arrest, disorderly conduct, and public intoxication. The trial court imposed a sentence o f six (6) month s with nine ty (90) days to be serve d for resi sting arre st and th irty (30) da ys each for both disorderly c onduct and public intoxic ation. The sentences were to be served concurrently . In his appeal as of right,the appellant challenges th e sufficiency of the evidence r elated to each conviction.Second, he contends the trial court abused its discreti on denying his reques t for full probation ordering him to serve ninety (90) days in the Knox County Jail.

After a review of the rec ord, we affirm the judgments of conv iction; the appellant’s sentence for resi sting arrest is modified.

BACKGROUND
On the evening of November 11, 1995, Knoxville police officers, Robert Soloman and Kenneth Robertson, respon ded to a domestic disturbance ca ll at 408 Knox Avenue. The residents of the Knox Avenue address i ncluded the appellant, his wife, Rebecca, his sister-in-law, Sandra Bullock, and the appellant’s parents, Pauline and Charles Woods, Sr.
The events leading to the pol ice call involv ed a telephone conversation between the appellant and his brother-in-law, David, who lives in Maynardsvill e. The appellant is married to David’s sister, Rebecca. The appellant had ca lled David to request David’s assistance in discourag ing Rebecca and her sist ers, Sandra and Dora, from “bar hopping.” The phone conversation escala ted into a heated1 Although vague reference was made to a “ real gun” which was recove red from M r. Wood’s vehicle after he had been removed from the car , no refere nce to such weapon was made by Officer

Soloman, the pri ncipal ar resting of ficer, during hi s testi mony. Moreover, no such weapo n was intro duced at trial. 3 argument. After threats were made over the telephone, David advised that he would be paying the appellant a v isit. Anticipating a n altercation, the appellant’ s wife had her sister, Sandra, telephon e the police because she “didn’ t want to see anybody get hurt.”
When the two officers arrived, the appell ant was in his reside nce. Rebecca, Sandra, and Dora were standing in the front yard and the appellant’s fa ther, Charles, Sr., was s

eated in his vehicle w

hich was parked on the st reet. David was en route from Maynardsvi lle. One of the sisters dir ected the police to the parked car. Upon approaching the vehicle, the officers observ ed a gun on the floorboard. With weapons drawn, Charles, Sr. , was removed from the car. The officers testified that he “reached in and got th e gun, and it was a toy gun.” 1 As Mr. Woods was being frisked by the officer,his wife came out of the house and pl eaded with the officers not to “mash” her husband i n the stomach because “he’s si ck; he’s got everything under the sun wrong with him.” Testimony reveal ed the elder Mr. Woods was 72 years old, that he has cancer and that he had an aneurism which resulted in “a plastic tube in the large artery of his heart. . . fused into the arteries of his legs.” Mrs. Woods stated, “I started cry ing and begging him t

o please quit before he kill ed him.”
During the commotion, the appel lant entered the front yard y elling at the officers to leave his father alone. W itnesses testified the appellant “was really violent. . . in a rag e,” “was cussin’ a nd kept runnin’ his mouth,” and that “[h]e was very upset, very

rude, intoxicated.” O

fficer Robertson stated the appell ant “was screaming at the top of his lu ngs.” Repeatedly, the officers told the appellant to return inside, or they would arrest him. The appellant moved away from the office rs, however, no one, incl uding the appellant, went inside.4 None of the witnesses for the St ate saw the appellant dri nking; however, the appellant testified he had one glass of vodka and oran ge juice. Both officers testified they smelled alco hol on the appellant. Sandra and D ora both testified the appellant appeared “drunk.” Another witness, Crai g Hamilton, a civil ian riding with Officer Soloman, testified that the appel lant was irate and appeare d intoxicated. Both officers perceived that the appel lant was a danger to th em.

While Officer Solom an filled out a weapon confiscation report with Charles, Sr., at the front of the vehicle, the appellant continue d to argue with the officers about “being heroes” and “ to quit harassing his

parents.” The appellant, his wife, and mother all testified the officers were yelling and cursing them. Again,the officers told the appellant to return inside.
When escorting Charles, Sr., back to the house, the appellant and his mother recounted an incident of Officer Solomon p utting the toy gun in the face of Pauline Woods telling her, “this wil l get you killed, l ittle toy guns lik e this.” This alleged incident sparked the final confrontation between Officer Soloman and th e appellant. While eight to ten feet away from Of ficer Soloman, the appellant stated, “If you’ll take the gun and [your] badge off, I’ll kick your ass right here in the middle of the street.” The appellant and his mother heard Off icer Soloman say, “I’m tired of this sh--.” Officer Soloman proceed ed up the four foot embankment to place the appellant under arrest.

Officer Soloman testified when he w ent to grab the arm of the appellant that the appellant lunged at him caus ing them both to fall and roll down the embankment. The appellant was “k icking and fighting”

until they stopped roll ing at the bottom of the incline. Officer Robe rtson turned to see the commotion an d immediately assisted Officer Soloman in handcuffing the appellant. Officer Soloman5

testified he attempted to use chemical spray to subdue the appellant, however, the attempt failed. The appellant denied lung ing at the officer stating he only tried to avoid the falling dow

n the embankment. The appellant testified the officer used chemical spray on his face and struck him in the head w ith “something black.” After handcuffing the appellant, the officers noticed blood on his forehead later requiring six stitches at the hospital. Neither of the officers were injured. Finally, David arrived at the scene but w as quickly sent aw

ay by the officers. After the officers had left the scene with the appell ant, Sandra, Dora, and Rebecca,the appellant’s wife, went “bar hopping” as

previously planned.

I. Sufficiency of the Evidence
The appellant challenges the sufficiency of the convicting evidence with regard to each conviction. When a challenge is made on appeal to the sufficiency of the convicting evi dence, this court must adhere t o certain well-estab lished principles. First, a jury conviction removes the presumption of innocence with which a defendant is initially c loaked and replaces it w ith one of guilt, so that on appeal , a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). Next, the State is entitled to the strongest l egitimate view of the e vidence and all reasonabl e or legitimate inferences w hich may be drawn there from. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993). Moreover, this court may not rew

eigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978). Viewing the evidence under these criteria, it is this court’s responsibility to affirm the convictio n if the proof was sufficient for any rational trier of fact to hav e found the essential elements of the offense bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S.2 Although t he appellant challenges h is arrest under suffi ciency of

the eviden ce, thi s issue is more properl y brought as a challeng e to an unlawf ul arrest . However, Offi cer Soloman was authorized to arrest the appellant w ithout a wa rrant for a misde mea nor com mitted in h is prese nce. See Tenn . Code A nn. § 40- 7-103(a )(1) (199 5 Supp .); Solom on v. State , 203 Tenn. 583, 315 S.W .2d 99 (1 958).
6 1086, 115 S.Ct. 743 (1995); Tenn. R.App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and cir cumstantial evidence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
A. Resisting Arrest Within this conviction the appellant avers (1) that there was not credible evidence the appellant intentionally prevented the office rs from affecting an arrest (2) that under Tenn. Code Ann. § 39- 11-611 his force was justified when the law enforcement officer used greater force than necessary to make the ar rest.
The jury found the appellant gui lty of resisting ar rest pursuant to Tenn. Code Ann. § 39-16-602(a) (1991). 2 In order to obtain a conv iction under this statute, the State mu st prove th at the de fendan t intenti onally pre vented or obstruct ed a known law enforcement officer, “from effecting a stop, frisk, halt, arres t, or search of any person, including the defendant, by using force agains t the law enforcement officer or another.” Tenn. Code Ann. § 39- 16-602(a). The proof establishes that the appellant “lunged” at Officer Soloman upon placing him under arrest. The appellant rolled down the embankment “k icking and fighting.”

Various witnesses c

orroborated these facts. Moreover, the appellant’s contention of self-defense was rejected as a decision properly made by the trier of fact. See Arterburn v. State , 216 Tenn. 240, 391 S.W.2d 648, 653 (1965); see also Tenn. Code Ann. § 39-11-611(e) ( 1) and (2) (1991). The proof in the record s upports the appellant’s conv iction for resisting arrest.
B. Disorderly Conduct7 Pursuan t to Tenn . Code Ann . § 39-17- 305(a)(1 ) (1991), the Stat e must pro ve the appellant was in a publ ic place with the inte nt to cause public annoyance or alarm while engagi ng in fighting or in violent or threatening behavior, as was charged in count four of the indic tment. The evidence presented at t rial demonstrated that the appellant w as in front of the residence, “screaming at the top of his lungs,” “violent,” and threatening to fight Officer Solomon. T his challenge is also without merit.

C. Public Intoxication In order sustain a convi ction for public intoxi cation, this court must find tha t the proof establishes the defendant w as under the influence of an intoxi cant in a public place to the degree that he is a danger “to other persons or property; or. . . unreasonably annoys peopl e in the vicinity. ” Tenn. Code Ann. § 39-17-310(a) (2) and (3) (1991). The appellant an d his wife testified he had one dr ink that evening at dinner. Five other w

itnesses testified that he appear ed intoxicated, whil e two of them smelled alcohol. Both officers testified they felt he was a danger to themselves and to others. We hold the evi dence was sufficient.

II. Sentencing
Third, the appellant contends the trial judge erred in denying his request for total probation requiri ng him to serve ninety (90) days in the Knox

County Jail. The trial court sentenced the appe llant to “the Knox County Penal Farm for a period of six months at a misdemeanor per centage of 75% percent; howev er, on payment of the costs, all time wi

th the exception of 90 days w ill be suspended” for resis ting arrest, a Class B misdemeanor. For disorderly conduct and public intoxi cation, both8

Class C mis demean ors, the t rial court imposed the maxim um sente nce of “3 0 days in each count at a misdemeanor perc entage of 75 percent” with those sentences to be served concurrently with the sentence for resi sting arrest.
When a challenge is made to the length or manner of service of a sentence, this court conducts a de novo review with the presumption that the determinati on made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption, only applies, however, if the record demonstrates that the trial court properly considered r

elevant sentencing pri nciples. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The record does not reveal that the tri al judge considered the principles, purposes, and goals of the Sentencing Act in imposing the sentences. Moreover, the trial judge failed to note the presence or absence of mitigating or enhancing factors in imposing a period of incarceration. Although in misdemeanor cases we have not required that trial judges explicitly list on the record applicable enhancing and miti gating factors, State v. Baggett , No. 03C01-9401-CR00031 (Tenn. Crim. App. at Knoxville, July 11, 1995), clearly a discussion of those factors would be th e better practice for purp oses of a ppellat e review.
The alternative sentencing provision of Tenn. Code Ann. § 40- 35-104 provides that a misdemeanant, as well as the felon, is entitled to sentencing alternatives. Tenn. Code Ann . § 40-35-104(a) (1995 Supp.) . The appellant contends that he should have been granted the senten cing alternative of full probation which requi res a separate analysis from that of alternative sentenci ng. See State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). The defendant has the burden of es tablishing his suitabi lity for full probation in that probation will “subserve the ends of justice and th e best interest of both the public and the defe ndant.” Id. (citing State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1990); see also Tenn. Code Ann. § 40-35-303(b) (1995 Supp.). When deciding suitability for probation,9

although not controlling , the sentencing court shoul d use the following cri teria: (1) “the nature and [circumstances ] of the criminal conduct inv olved,” Tenn. Code Ann. § 40-35-210(b)(4); (2)

the defendant’s potential or lack of potential for rehabilitation, Tenn. Code Ann. § 40-35-103(5); (3) whether a sentence of full probation would unduly depreciate the seri ousness of the offense, Tenn. Code Ann. § 40-35- 103(1)(B); and (4) w

hether a sentence other than full pr obation would provide an effective deterrent to others l ikely to commit simil ar crimes, Tenn. Code Ann. § 40- 35-103(1)(B). See Bingham , 910 S.W.2d at 456. Denial of probation may be base d solely upon the circumst ances of the offense when they are of suc h a nature as to outweigh all other factor s favoring probation. State v. Fletcher , 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991).
Here, the State argues these offenses are serious due to the violence directed toward polic

e officers attempting to diffuse a domestic dispute. Additionally, the State avers that jail time will prevent depreciating the seriousness of the offenses. In considering the deni al of an alternative sentence based upon the seriousness of the offense, this court held, “the circumstances o f the offense as committed must be especially violent, horrifyi ng, shocking, reprehens ible, offensive, or otherwise of an excessive or exaggerated degree.” Bingham , 910 S.W.2d at 454 (citing State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). Furthermore, the nature of the off ense must outweigh all factors favoring a sentence other than confinement. Bingham , 910 S.W.2d at 454. In th is case, we are unable to conclude that the circumstances of these of fenses meet the standard set forth in Bingham and Hartley

.
At the sentencing hearing, the appellant maintained his inno cence in that his anger was justified c

onsidering the mistreatment of his parents. He stated that the officers were giving his father a “hard time” and “six stitches later and $3000 dollars to Billy Brown [h is attorney] here w e are.” The trial court was of the opinion that the10

appellant had not taken the responsibility for his actions. The State argues that lack of repentance and remorse are appropr iate factors to consider in denying probation. State v. Pierson , 678 S.W.2d 905 (Tenn. 1984). We agree with the court deny ing the appellant probation based upon hi s lack of remorse.
However, upon de novo review, we c

onclude that, based upon the circumstances presented in the case sub judice , modification of the appellant’s sentence is necessary. In misdemeanor sentencing, although the defendant is not entitled to the presumption of a mini mum sentence, State v. Seaton , 914 S.W.2d 129, 135 (Tenn. Crim. App. 1995) (citations omitted), th e sentencing court determines what portion of the sentence must be se rved in confinement after which the defendant is eligible for c ertain rehabilitativ

e relief programs. See Tenn. Code Ann. § 40-35-302(d) (1995 Supp.) . In so determining, the co urt should consider enhancement and mitigating factor s as well as the leg islative purposes and principles related to se ntencing. Tenn. Code Ann. § 40-35- 302(d); State v. Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995); State v. Gilboy , 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993). How ever, the statutory en hancement and mitigating factors do not have to be the only factors considered by the t rial court in determini ng the appropriate sentence. The court should examine the misdemeanor offense in the light and character of the circumstances of the offense. State v. Brannon , No. 03C01-9508-CR-00233 (Tenn. Cr im. App. at Knoxville , Apr. 3, 1996), perm. to appeal denied , (Tenn. Nov. 4, 19 96) (citing Gilboy , 857 S.W.2d at 889).
Accordingly, w

e conclude that the following mitigating factors appl y to the appellant’s conviction s for disorderly conduc t and the resulting resi sting arrest: (1) “the defendant acted under strong p rovocation,” Tenn. Code Ann. § 40-35-113(2) (1990); (2) “[s]ubstantial grounds exist tending to excuse or justify the defendant’s criminal conduct, though fail ing to establish a defense,” Tenn. Code Ann. § 40-35- 113(3); and (3) “the defendant, although guilty of the crime, com mitted the offense11

under such unusual circumstan ces that it is unlikely that a sustained intent to v iolate the law motivated his conduct,” Tenn. Code Ann. § 40-35-1 13(11). Further, we find that the appellant exhibits a stable work record, although presently unable to work because of recent back surger y, thereby provi ding familial support for his wife and daughter, Tenn. Code Ann. § 40-35- 113(13). We conclude only one enhancing factor applies to the appellant. The presentence report includes one prior conviction for simple assault, however, we give this factor little weight because it is a Class A misdemeanor which occurr ed over ten years ago. See Tenn. Code Ann. § 40-35- 114(1) (1995 Supp.). Although we do not minimize the gravity of the officers ’ situation in dif fusing a domestic dispute, based upon the enhan cing and mitigating factors, the appellant’s sentence for the offense of resisting arrest is modified to reflect a sentence of six months with thirty (

30) days to be served in the county jail. This sentence is to run concurrently with the appellant’s Class C misdemeanor convictions for disorderly conduct and public intoxi cation. The judgment of the trial court in all other res pects is affirmed.
This case is remanded for entry of judgment consistent with this opinion.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JOHN H. PEAY, Judge12

____________________________________ JOSEPH M. TIPT ON, Judge