# FILED
September 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1998 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9711-CC-00489

) ) Hawkins County v. ) ) Honorable James E. Beckner, J udge ) HENRY CLAYTON GILLIAM, ) (Driving under the influence) ) Appellant. )
For the Appellant : For the Appellee : Greg W. Eichelman John Knox Walkup District Public Defender Attorney General of Tennessee and and R. Russell Mattocks Janis L. Turner Assistant Public Defender Assistant Attorney Gener al of Tennessee 1609 College Park Dri

ve, Box 11 425 Fifth Avenue North Morristown, TN 37813- 1618 Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General 109 S. Main Street, Suite 501 Greeneville, TN 37743 and John Douglas Godbee Assistant District A

ttorney General Main Street Hawkins County Courthouse Rogersville, TN 37

857

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Henry Clayton Gilliam, appeals as of right from his conviction by a jur

y in the Hawkins C

ounty Criminal Court for driving under the influence, second offense, a Class A mis demeanor. The trial court senten ced the defend ant to ele ven month s and twen ty-nine da ys in the co unty jail, seventy-f ive percent to be served before r elease. It imposed a fine of one thousand fiv e hundred and ten dollars. The defendant conte nds that the evidence is insufficient to support his conviction and his sentenc e is excessive. We affirm the judgment o f conviction.

Katherine Burns testified that d uring the late hours of Apri l 18, 1997, she heard a car pull into her d riveway. She s tated that she looked out the window and saw the car sitting in the driveway w ith its lights on and th e motor running. She said t hat she waited approximately

fifteen minutes for someone to come to the door and then called 9-1-1. She testified that an officer arrived approximatel y fifteen minutes later. She stated that the officer had to help the defendant out of the car. She testified that s he heard the officer ask the defendant if he knew where he was and the defendant replied, “No.” She said that she had not invited the defendant or anyone else to her home. Ms. Burns believed the defendant w as intoxicated because the o fficer had to help the defendant out of the car and because the defendant’s speech was slurred.

Officer Gerald Gibson of the Haw kins County Sheriff’s Depar tment testified that he responded to Ms.Burns’ call at approx imately 11:10 p.m. He said that when he arrived, a 1981 gold Toyota car was sitting in the driveway of the Burns’ residence with the emerg ency brake on and the engin e running. He stated that he walked up to the car and saw the defendant slumped over the steering wheel. He said he knocked on the window , but the defendant did not respond. Officer Gibson testified that he then opened the door and shook the defendant, but the defendant did not3

respond. He said that he reac hed into the car, turned off the ign ition, and turned off the headlights. He stated that the defendant awoke, and he asked him t o get out of the car. Officer Gibson testified t hat the defendant mumbled, grumbled and refused to get out of the car. He said that he had to reach into the car, grab the def endant by the arm and pull him out of the car.

Officer Gibson testified that once th e defendant was outside the car, he asked the defendant his name and asked for i dentification. He said that the defendant refused to tell him his name. He testified that the defendant was uns table on his feet and could not stand by himself. Officer Gibson testif ied that he asked the defendant if he knew where he w

as, and the defendant responded that he needed to speak to a detective because he had been ki dnapped by the people who had k illed a man and woman in Greeneville and had gotten out of jail. He said that the defe ndant told him that the people had forced him to dri nk blood and alcohol and take pil ls. Officer Gibson asked the defendant how the murderer s got out of jail and kidnapped him, and the defendant had no response. He stated that the defendant knew that he was in a driveway but di d not know whose and did not know the name of the road.

Officer Gibson stated that he smell ed a strong odor of alcohol on the defendant. He also stated that the def endant’s speech was slurred, his eyes were bloodshot, and his hair and cl othes were in disarr ay. Officer Gibson testified that when he asked the defendant to walk to the police car, a scuffle betw een him and the defendant took place. He said that he then arrested the defendant for driv ing under the influence and took the defendant to the sheri ff’s department. He stated that he did not conduct any field sobriety tests because the defendant was unc ooperative. Officer Gibson testified that when the y arrived at the she riff’s department, the defendant refused to take a breathalyz er test and refused to sign forms reflecting that he refused4

to take the test. Officer Gibson t estified that there was no i ndication that the defendant had been kidnapped.

Jason Brake, formerly a jailer for the Hawkins County Sheriff’s Department, testified that the defe ndant was unsteady on his feet at the jail. He said that he smelled a strong odor of alcohol on the defendant and that the defendant’s eyes were bloodshot and his speech was slurred. Jai ler Brake believed that the defendant was highly intox

icated. He said that the defendant to ld him that vampire aliens from Kentucky had abducted him from his home, forced him to drive his car for them, and forced him to drink blood before lea ving him at an unknow n residence. He stated that at the defendant’s request, he filed a comp laint on the defendant’s behalf. Jailer Brake believed the defendant’s claims to be ludicrous, and he said that no investigation of his claims took place.

The defendant testified that he had not drunk any thing on the day of the offense and that he smelled like beer bec ause he had been picking up beer cans from 8:00 a.m. to 7:00 p.m. He said that when he returned hom e, two men walked up to him and his son, asked his son for a cigarette, pulled a gun on them, and said, “Let’s go.” He stated that the men forced him and his son into the defendant’s car and forced him to drive to Morris

town and to buy beer and l iquor. The defendant said that the men forced him to drink beer, take p ills, and drink something that was red, although he was unsure whether it w

as blood. The defendant stated that he w as afraid that the men would shoot him and his son. He said that he pulled into a driveway after t elling the men that his chest was hur ting because he had high bl ood pressure. He testified th at one of the men hit him in the head wi th the gun, causing him to become unconscious. He said that he could not remember anything from that point unti l Officer Gibson awakened him. He stated that he did not know how long he had been passed out or where he was. The defendant tes tified that he tried to tell O fficer Gibson what had5

happened, but Officer Gibson would not listen. He said that Officer Gibson was confused about who the defendant had said had kidnapped him and that he tried to explain. On cross-ex

amination, the defendant testified that w hen he pulled into the driveway, his

son got out of the car and ran aw ay as the men fired shots. He said that he did not tell the police tha t his son had been kidnapped because his son had been able to escape.

Clayton Byington, the defendant’s son, testified that he c ould not remember where he was or whether he was with the defendant on April 18, 1997. He said that he did not remember any thing about that day. He conceded that he had discussed the case wit h the defense attorney and had told hi m a story similar to the defendant’s version of the facts. On cross-examination, M r. Byington admitted that he had not been kidnapped. He said that he had told the officers that he w as not going to lie for the defendant.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his conviction in that the s

tate failed to disprove the t estimony of the defendant recounting how he had been kidnapped and left in Ms. Burns’ drivew ay. Our standard of rev iew when the sufficiency of the ev idence is questioned on appeal is "whether, after vi ewing the evidence in the lig ht most favorable to the prosecution, any rational trier of fact could have found the essential el ements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that the jury has resolved all conflicts in the testimony and drawn al l reasonable inferences from the ev idence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). Under this standard, we hold that the evidence is sufficient to convict the defendant of dr iving under the influence , second offense.6 II. SENTENCING The defendant contends that the trial cour t erred in its applicati on of enhance ment and mitigatin g factors and that the trial c ourt impo sed an exc essive sentence. He also argues that the trial court err ed by denying probati on. The state responds that the trial cour t properly sentenced the defendant . We agree.
The presentence report reflects that the then forty-four-year -old defendant dropped out of high school after compl eting the tenth grade. The defendant has a prior criminal history c

onsisting of a convicti on for driving under the influence and four convictions for public intoxication. The defendant repor ted that he had abused alcohol for thirty-four years . The presentence report reflect s that the defendant was unemployed and was disabl ed due to problems with his heart, blood pressure and
nerves.
In sentencing the defendant, the trial court considere d the defendant’s prior criminal history, noting that the defendant had four prior convictions f or public intoxication. See T.C.A. § 40-35-114(1). It found no mitigating factors appl icable. It said that enhancement factor (1) w as given greater w

eight because it found that the defendant’s testimony was untruthful and that th e defendant had attempted to have his son testify falsely. The tr ial court stated that it deni ed probation because of the defendant’s prior criminal h istory, his histor y of alcohol abuse, his poor employment record, and his blatantly false testimony. The court co nsidered the sentencing purposes and principles.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt’s determinations are c orrect. T.C.A. §§ 40-35-401( d) and -402(d). The “presumption of correctness which accompa nies the trial court’s action is conditioned upon the affirmative showing in the record that th e trial court7

considered the sentencing principles and all relevant facts and circumstan ces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). As the Sentencing Commission Comments to T.C.A. § 40-35-401(d) and - 402(d) note, the burden is now on the appealing party t o show that the sentencing is improper. We note that there is no pres umptive minimum sentence provided by l aw for misdemeanor sentencing

. See , e.g. , State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Howev er, the sentence must comply with the misdemeanor sentencing req uirements of the Criminal Sentenc ing Reform Act of 1989. See State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995).

In this case, the record demons trates that the trial cour t followed the requirements of the Sentencing Act and exercised soli d judgment in its determinati ons. The defendant has failed to sho w that the sentence imposed by the trial court is improper.
In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

______________________________ Joseph M. Tipton, Judge CONCUR:

______________________________ Joe G. Riley, Judge

______________________________ Thomas T. W oodall, Judge