# FILED
May 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9704-CC- 0 016 4 ) vs. ) Coffee County ) VIRGINIA AILENE GANN, ) Hon. Gerald L. Ewell, Sr., Judge ) Appellant. ) (DUI - 2d, Evading Arrest)

FOR THE APPE LLANT: FOR THE APPELLEE: VICKIE FRYE-FOWLKES (at trial) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter P.O. Box 247 Winchester, TN 37398 KAREN M. YACU ZZO Assistant Attorney Gener al ROBERT S. PETERS (on appeal) 425 Fifth Ave. North Attorney at Law 2d Floor, Cordell Hull Bldg. 10 0 F ir st Av e. , S .W. Nashville, TN 37243-0493 Winchester, TN 37398 C. MICHAEL LAYNE District Attorney General STE PHE N E. WEI TZM AN Asst. District Attor

ney General P.O. Box 147 Manchester, TN 37349-0147
AFFIRMED OPINION FILED:_________________ CURWOOD WITT, JUDGE1 Gann was also convic ted of violation of the implied c onsent law. She has not appealed this convicti on. 2 OPINION The defendant, Virginia Ailene Gann, appeals her c on victions of second offense driving under the i nfluence and evading arrest

. 1 Her convictions
re sulted from a jury trial in the Coffee County Circuit C ourt. The trial cou r t sentenced her to serve eleven months and 29 days for driv ing under the influence, with 180 days of incarceration followed by probation, and two years of incarceration forevading arrest. C

oncurrent sentences wer e imposed. In this di rect appeal, Ga nn con tends the convicting evidence is insufficient to support findings of guilt beyond a reasonable doubt and that her sentences

are excessive. Following this court's review of the record and the briefs of the parties, we affirm the judgment of the trial court.

Gann's c onvict ions stem from events occurring during the early morning hours ofOctober 28, 1995 as she drov e the city streets of Tullahoma after
an evening of

socializing with friends in a restaurant and a bar and dri nking mixed alcoholic beverages.

At trial, Sergeant Joe Alv arez ofthe Tullahoma Police Department testified that at approximately 3 :00 a.m., he was directing traffic around an accident
scene. He saw

a vehicle approach w

ith its parking lig hts on but not its headlights. The right blinker was operating, and the vehicle was traveling in an erratic manner above the posted speed limit of 30 miles per hour. The vehicle nearly hi t a parked patrol c ar, but it swerved and av oided a collision. Usi ng his flashlight, Alv arez motioned for the vehicle to pull ov er. Gann, the driver of the car, p ul led into the oncomi n g lane and stopped. Sergeant Alvarez, who was dressed in his police uniform and a blue windbreaker w ith police insignia, motione d for Gan n to roll do wn her window. She

fumbled and eventually rol led down thewindow. Gann refused,3

however, to get out of the car despite Sergeant Alvarez's multiple requests. Using profan ity, Gann informed the officer she was not going anywhere but home. Gann's
s peech was slurred. Alv arez noticed the smell of an al coholic beverage on her breath and clothes. He reached int o the car and at tempted to turn it off but was onlyable to get it into the parking gear. The defendant

then put the car in motion, bumping Alvarez's knee as she drove from the scene.

Officer Kerry Hayworth witnessed the defendant's erratic driv ing and her exchange with Ser

geantAlvarez. Hay

worth was able to

hear part of Alvarez's
conver sation with the defendant, including Alvarez's multipl e requests that th e defendant get out of her car and her refusal to

do so. As the defendant drove aw ay from Alvarez "in a fast direction," she ran a r ed light. Haywo rth ran tohis patrol car and followed her wit h blue lights and siren operating. Haywo rth pursued her through two turns and into an all ey. After stopping in the alley

for 30 to 40 seconds, Gann pulled out into another stree t. A county constable, Mike Fowler, was waiting
on the street to intercept Gann, and she stopped her vehicle shortly thereafte r. The entire distance from the wreck scene to the site of apprehension was approximately half a mile.

Officer H ayworth yelled for the defendant to get out of her car. For about two minutes, he asked her r epeatedly to unlock and open her door. Gann appeared to be tryingto unlock her door, and finall y Hayworth tol d her to roll down t he window. Gann complied, and Hayworth reached in and unlocked the door. Gann smelled of alcohol. Sergeant Allison, who knew the defendant, arrivedon the
scene and wasable to coax her from the v ehicle. When she came out of the car, Gann was unsteady onher feet and leaned on the car door for support. Ha yworth did not administer field sobri ety tests for fear Gann might injure herself.4 Hayworth transported Gann to the police station, where she refused to take an intoximeter test.Hayworth did not r ecall Gann making any c omplaints about her medical condition while she was in his patrol vehic le. He d escribed her degree of intoxication as "strong."

Officer Hugh Vickers was

on duty in the jail on Oct ober 28, 1995. He did the intake of the defendant. She did not a t t hat time complain of any medical conditionsthat needed attention. She had some medic ine with her, whi ch she later requested. The defendant was not given her medication because jail policy is not to allow prisoners w

ho have been drinking to have a ny m edicatio n for the ir own safety.

Constable Mik e Fowl er assisted Officer Hayw orth in pursuit of the defendant. He generally corroborated Haywor th's testimony. He desc ribed the defendant as mad, uncooperative and str ongly impaired. The cons table opined that the defendant should not have beendri ving. He noticed her speech was slurred. He conceded it was possibl e that someone who was sick could be unabl e to stand or would have proble ms walking.

Officer Johnny Gore was

on duty at

the Tullahoma Police Department
as the public service officer on the night of the defendant's arrest. He heard about the incident on the radio. Real izing the pursuit w as tak ing place nearby, he ran outside and witnessed the defendant making an erratic turn into the

wrong lane

of traffic.
Sergeant Rodney Banks witness ed Gann's refusal to perform the intoximeter

test. He described her as "very intoxicated." He said the defendant was coopera tive "for the condition she was in" and wanted to unde rstand everything , but5

it was hard to explain things to her.

The state also introduced docu menta ry exhibits contai ning the defendant's signature on the jail intake form and a document signed on a later

date. In the former, the defendant's signature is mu ch less legible than the latter.

The defendant took the stand and detailed her many physical ailments. She has a history of heart surgery and chest pai ns. She w as having chest pains on October 27, 1995, but she worked all day as a nurse's aide. That evening, a friend visited Gann. The defendant drank on e mixed drink contain in g vodka and grapefruit juice w ith her friend. Earlier in the day, Gann ha d taken Cardizem, which is a blood pres sure medication, a coated aspir in and a diuretic. Apparen tly, she also took nit roglycerin for ches t pains while at hom e that evening. The defendant and her friend went

to a restaurant to see other fr iends, and Gann had a sandwich and a second v od ka an d grapefruit juice cockt ail. Around 10:00 p.m., the defendant and her friend went to The Office Lounge. The defendant testified she drank o nl y orange juice from this point forward. The defendant became sick and took nitroglycerin. Later, she took her friend home

and returned to The Office.

The defendant talked with Detective Holder after she returned to The Off ice. The detective had responded because of vandalism th at had taken place earlier in the evening. Gann denied that Detective Holder s aid anything to

her about her state of intoxication.

The defendant left The Off ice around 2:00 or 2:30 a.m., but she was so sick that she sat in her car for 15 to 20 minutes. She had taken a "nitrate." As the defe nda nt attempted to make her way home, she came upon the wreck and6

Officer Alvarez. She testi

fied she thought Alvarez was directingher to go around,
so she drove over to the left side of the road. She saw Alva rez, whom she was not
sure was a police officer, say ing something to her. She thought he was telling her to go ahead. She heard someone yel l "hey" but shethought this commotionwas related to the wreck s

cene. After Gann left the scene, she saw blue lights but did not think they were for her. She pulled into an alley

to let the police vehicle pass. When she realized the blue lig hts were for her, she decided to go to a well lig hted
area because she had heard of women in Nashville and other pl aces being stopped bypolice impostors using blue lights. Gann claimed sh e was not trying to elude the officers.
According to Gann, the officers p ulled her out of her car. She w ent limp and felt as if she would fai nt. The of ficers did not inquire w hether she had been drinking. At the jai l, Gann gave t he officials her nitrogly cerin and informed them she had been t

aking it for

chest pains

and nausea. S he asked for s ome nitroglycerin but was not given a ny. She explained that her signat ure on th e jail intake form was difficult to r ead because she was sick and uncoordinated.

The defenda nt expla ined her conduct with the officers as a misunderstanding of the si tuation . She clai med she wa s not drun k and had only two drinks all evenin g. She has had alcoh ol on only a few occasions since having heart surgery. With reference to her headl ights, she thought they were turned on. She did not recall speaking with Detective H older at The Office about her alcohol consumption and whether she should be out on the roads. She explained that her diffi culty in unlocking the car doors resulted because she rarely locks them. She decided not to submit to an intoximeter test based upon her mistrust of the reliability of such test results from past ex perience.7 Steve Ashley, the manager of The Office, testified for the defense. He served the defendant orange juice but no al cohol on the evening in question

. Ashley remembered serving the defendant beer i n the past but had never seen her drink liquor. He did not see her add liquor to her orange juice, but he did not watch herconstantly. He recal led that Gann was not feeling well and had tak

en som e nitroglycerin.

Melissa Mantooth testif ied s he was at The Office on October 27, where shetalked with the defendant. She r ecalled that the defendant did not feel well and was taking nitrogly cerin. Sh e did not see the defendant consume any alcohol. Mantooth opined that the defendant did not appear to be intoxicated and did not smell of alcohol.

Harold Ashley, a family friend of the defendant, testified that the defendant was feeling "pretty good" as far as he knew and did not appear intoxicated. He saw Gann drinking orange juice from a small c an. He recalled that a blonde woman s pilled a mixed drin k on Gann during th e evening.

Doctor Dinish Gupta, the defendant's car diologist, tes

tified that the defendant is on several medications for her coronary artery disease. He opined that thes e medications would not increase the level of intoxication if ingested wit h alcohol. However, he

testified that nitroglycerin use "may be associated with lightheadedness on standing, especially just after rising from r ecumbent or seated position." Further, this effect may occur more frequentl y in patie nts who ha ve consumed alcohol. He admitted that nitrogly cerin relaxes the smooth muscle of the heart, but it would not

have the same effect on the skeletal muscles. With respect to the defendant's varyin g signatures, he testified that the nitroglyceri n would not accountfor the decreased legibility of the signature on the jail intake form unless the8

defendant's blood pressure was v ery low at the time of

the signature. He admitted that it was "possible" that the s ignature appeared as it did d ue to con sumptio n of a significant amount of an alcoholi c beverage.

In rebuttal, the state called Detect ive Pat Hol der of the Tull ahoma Police Department. The detective has known the defendant for twenty years. He
saw the defendant at The Off ice in the late evening hours of October 27 or the early morning hours of October 28. She had the odor of alcohol on her breath. Gann told Detective Holder that she was not s upposed to drink but in the ex citement of the vandalism and a fight she had be en drinking. He said Gann "was high and had a buzz on" but was not "falling dow n drunk." He warned the defendant that she might be arrested if she "got out on th e street."

I First, the defendant challenges the sufficienc y of the convicting evidence on both the DUI and evading arrest conv ictions. When an accused challengesthe sufficiency of the evidence , an appellate court’s standar d of review is whether, after consider ing the e vidence in the light most favorable to the prosecution, any

rational trier of

fact could have found the essential elements of the crimebeyond areasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt base d upon direct evidence, circumstantial evidence, or a combination of direct and cir cumstan tial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this court should not
rewe igh or reev aluate the evidence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concer ning the credibility

of the witnesses, the9

weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. Stat e , 199 Te nn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonab le and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

A In pertinen t part, driving under the influence is committed wh ere an individual drive[s] or [is] in physical control of any automobile or ot h er motor driven vehicle on any

of the public roads and highw ays of this state, or on any streets

or alleys, or whil e on the premises of any shopping center, traile rpark or any apartment house complex, or any other premises which is generally frequented by the public at large, while

.

. . [u]nder theinfluence of any intoxicant, mari juana, narcotic drug, or drug producing stimulating effect s on the central nervous s ystem . .

. . Tenn. Code Ann. § 55-10-401 (1993) (amend ed 1996).

In the case at bar, the

defendant contends the proof of her intoxication is insufficient as a matter of law.We disagree. In the light most favorable to th e state, the defendant admitted having two mixed dri nks, o ne at her home and one at a restaurant before s he went to The Off ice. Addi tionally, she told D etective Holder that she had been drinking i n the excitement of the vandalism and a

fight at The Office. Other officers observed Gann with slurred speec h and alcohol on her breath. Moreover, the officers tes tified that Gann was uncooperative at times and unsteady

on her feet. Her signatur e made on O ctober 28 was difficult to read, in contrast to a signature made lat er. The defendant refused to take an intoximet er2 See State v. Morgan , 692 S.W.2d 428, 430 (Tenn. Crim. App. 1995)

(defendant's refusal to submit to bl ood alcohol test held probativ e of issue of defendant's guilt of DUI wh en defendant claimed his physic al condition was due to pre-existing di sability and not alcohol consumption); see also State v. Smith , 681 S.W.2d 569, 57 0 (Tenn. Crim. App. 1984). 10 test. 2 Some of this evidence was unrebutted. As to the res t, the jury had the prerogative, as the finder of fact, to weigh the evidence and accredit the state's witnesses

and discredit the defense witnesses. W e believe a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of driv ing under the influence. As such, we fin d this issue lacking in merit.

B The defendant also challenges the sufficiency of the convicti ng evidence pertaining to evading arrest. The evading arrest st atute pr ovides in pertinentpart, "It is unlawful for any person, while operating a motor vehicle onany street, road, alley or highway in this state, to intentionallyf lee or attempt to elude any law enfor cement o fficer, after ha ving receive d any signal fro m such officer to bring the vehicle to a stop." Tenn. Code Ann. § 39-16-603(b)(1) (1997).

The defendant challenges only the sufficiency of proof that she acted intentionally with respect to this crime. As we have often found, intent is properly established by circumstantial ev idence. See, e.g. , State v. Chrisman , 885 S.W.2d 834, 838 (Tenn. Crim. App . 199 4). In fact, intent is the element that is most frequently establis h ed from circumstantial proof. See State v. Hall , 490 S.W.2d 495, 496 (Tenn. 1973). In the light most fav orable to the state, Sergeant Alvarez asked Gann to step out of her vehicle, to which

she replied "she wasn't going any g.d. place but home." Whereupon, Gann proceeded to roll up h er window an d drive off, bumping Alvarez's knee with her car in the process. Gann then fled fromOfficer Hayworth for half a mile while Haywor th had the blue lights and si ren on his patrol3 See State v. Kerry D. Garfinkle , No. 01C01-9611-CC-00484, slip op. at 5

(Tenn. Crim. App., Nashvi lle, Nov. 7, 1997) (w hether defendant convicted of evading arrest saw officer's signals to stop is a question of credibility for the jury). 11 vehicle in operation. 3 Moreover, G ann mad e two turns during the course of Hayworth's pursuit of her. From this e vidence, a rational trier of fact, as the jury in this case, could infer that the defendant inte ntionally engaged in these actions in order to evade arrest by th e officials. Thus, we fin d the evidence sufficient to sustain the defendant's convic tion of evading arrest.

II In her second issue, Gann complai ns of the sentences imposed. Gann received a two-year incarc erative sentence for evadi ng arrest. She receiv ed
an eleven mo nth, 29 d ay senten ce for se cond of fense DU I with 180 d ays t o be served in confinement and the bala nce on probation.

In determining whether the tria l court has properly sentenced an individual, this court engages i n a de novo review of the record witha presumption that the trial court's deter minations were correc

t. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative s howing in the record tha t the trial court consider ed the sentencing principl es and all relevant facts a n d circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider the ev idence at sentencing, the presentence report, the sentencing

principles, the argument s of counsel, the statements of the defendant, the nature and characteristics o f the offense, any mitigating and enhancement factors, and the defendant’s amenabilit y to r ehabilitation. T enn. Code Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby , 823 S.W.2d at 168. On appeal, t he appella nt has the burden of showing that the sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.4 The defendant's trial was in June 1996. Doctor Cribbs's testimony was

taken in September 1996. 12

In her brief, Gann does not contend that the trial court's determin ation should be stripped of the presumption of cor rectness. Moreov

e r, we find that the court followed the correct procedure and considered the releva nt criteri a. Thus, we evaluate the sentences with the presumption intact.

We begin with the facts developed at the sentencing hearing. T h e state presented testimony fromLaura Prosser, a presentence investig ator with the Departmentof Correction. Ms. Pros ser recalled that

the defendant professed her innocence and desire toappeal. Ms. Prosser did not sense any remorse from the defendant. The defense presented thetestimony of Dr. Richar d Cribbs, who began treating the defendant in Ma y 1996 4 for depression and anxiety related to the defendant's tr

ial and the po

ssibility of having t

o serve ti me in jail or prison. Of the defendant's mental state and his treatment, he opined, "It's been a crisis situation." He has prescribed Valiu m for th e defendant. Gann has told the doctor s everal times that she would rather c ommit suicide than go to jai l. If she were incarcer ated, the defendant would need her medication . A written report fro m Dr. Cribbs contains the statement, "I feel that this la dywould become even more depr essed and anxiousif she wasplaced behind bars." As a portion of the presentence report, the court received the defendant's medical records and a letter from Robe rt M. Canon, M.D., an orthopaedic surgeon, which detaile d th e defendant's "cervical disc syndrome

with associated occi pital headaches." Doctor Canon also noted Gann's other medical conditions -- c oronary artery di sease, hypertensive cardiovascular disease, angina pectoris, supraventricular t achycardia, wide complex tachycardia and hyperlipi demia. Other information in the presenten ce report includes the defendant's age of 65 years, prior convicti ons forDUI and public intoxi cation,13

educat ion thr ough the ninth grade plus v ocational training as a nurse's aide, and employment caring for a bli nd and disabled woman.

A First, we examine

the length of the sentences imposed by the trial court. The court applied three enhancement facto rs in a rrivi ng at Gann's sentences: ( 1) The defen dant has a previous histor y of criminal convic

tions or cr iminal behavior in addition to those necessary to establ ish th e appropriate range;

. . . (10) The defend ant had no hes itation about committing a crime when the risk to human life was high;

. . . (16) The crime was

committed under circumstances under which the potential for bodily inju ry to a victim w as great[.] Tenn. Code Ann. § 40-35-114(1), (10), (16) (1997). The defendant challenges the application of factors (10) and (16).

Gann's argument with respect t o factor (10) is that her behavior in driving away from Sergeant Alvarez while she allegedly was confused did not

pose "reasonable ri sk " to Offi ce r A lv ar ez . We disagree. As we have previously recognized, enhancement factor (10 ) may be applied to DUI and evading arrest convictions in appropr

iate circumstances. See, e.g. , State v. Erwin Keith Tins ley , No. 03C01-9608-CC-00305, sli p op. at 5, n.2 (Tenn. Crim. App., Knoxville, Sept. 9, 1997) (evading arrest) ; State v. Wayne L. Hughes , No. 01C01-9502-CC-00033, slip op. at 16 (Tenn. Crim . App., Na shville, June 20, 1996) (opinion on rehearing) ( evading a rrest), perm. app. denied (Tenn. 1996); State v. Dockery , 917 S.W.2d 258, 263 (Tenn. Crim. App. 1995)(DUI); State v. Dale L. Stewart , No. 03C01-9106- CR-00158, slip op. at 5 (Tenn. Crim. App., Knoxville, Mar. 13, 1992) (DUI).

We find Gann's claim of confusionunpersuasive. The trial court found14

as fact at the sentencing hearing that Gann had been untruthf ul in this claim. In finding her gui lty of e vad ing arrest, the jury made the same finding. More signific antly, the facts present a case in whic h several individuals wer e endangered bythe defendant's drunken drivi ng and evading arres t. The defendant endangered Serge ant A lvarez, who w as standing on a roadway directing traffic around a wrecked truck in the early mor ning. Alvarez w

as fortunate not to have been hurt severely. Given her erratic driving, the defendant endang ered Officer Hayworth and Constable F owler

wh en he r c

on du ct re qu ir ed th em to

in it ia te pu rs ui t of h er . We believe application of this factor was proper.

Likewise, we find no error in the applica tion of factor (16). This factor is appropriate for DUI an d evading arrest convictions where the facts of the case warrant its application. See, e.g. , State v. Joseph L. Fletcher, No. 03C01-9606-CC00229, slip op. at 8 (Tenn. Crim. App., Knoxville, Jul y 9, 1997) (DUI); State v. Kenneth L. Warren , No. 01C01-9605-CC-00218, slip op. at 6-7 (Tenn. Crim. App., Nashville, May

21, 1997) (DUI); Wayne L. Hughes , slip op. at 16 (evading arrest); State v. Dewayne Smith , No. 03C01-9501-CR-00024, s lip op. at 9 ( Tenn. Crim. App., Knoxville, Sept. 19, 1995) (evading arre st and DUI), perm. app. denied (Tenn. 1996). While exc eeding the speed limit, Gann nearly struck a parked police car. She ran a red light. On two separate occasions, she drove on the wrong side of the road. The trial court appropriately found tha t she committed her crimes under circumstances under whi ch the potential for bodily injury to a victi m was great.

The trial court declined to app ly any mitigating factors in arriving

at Gann's sentence. She claims the court should have mitigated her sentence because of her medical condition, her "criminal conduct neither cau sed nor threatened serious bodily injury," and "substantial grounds exist tending to excuse or justify [her] cri minal conduct, though failing to establish a defense." See Tenn.15

Code Ann. § 40-35-113(1), (3), (13) (1997). Because the tria l court appropriately applied enhancement factors (10) and (16), a finding that the defendant's criminal conduct neither caused nor threatened serious

bodily injury w

ould be inconsistent. Mor eover , we reject the proposition that driving under the influence and evading arrest while driving

under the influence do not cause or threaten serious

bodil y injury. Further, the trial court's d eci sion not to find substantial g rounds tending to
excuse or justify the defendant's conduc t is appropriate because the c ourt found that the defendant was untruthful. This leaves only the question of mitigation based upon the defendant's poor health. Bearingin mind the presumed correctne ss of the trial court's determination, we do not believe the court erred in declining to find this mitigating factor. See State v. Anthony Raymond Bell , No. 03C01-9503-CR-00070, slip op. at 6 (Tenn. Crim . App., Knox ville, Mar. 11, 1996)

(finding ill health an inappropriatemitigating factor but noting it may be an appropr iate consideration for alternative sentencing), perm. app. denied (Tenn. 1996).
Evading Arrest

Evading arrest by motor vehicle is a Class E felony. Tenn. Code Ann. § 39-16-603(b)(3) (1997).The sentencing range for a R ange I offender such as the defendant is one totwo years. Tenn. Code Ann. § 40-35-112(a)(5) (1997). For a felony convi ction, the trial court i s required to start at the minimum sentence and enhance within the range according to the applicable enhancement factors, then reduce the sentence appropriately for the mitigating factors. Tenn. Code Ann. § 40- 35-210(e) (1997).

We find tha t the defendant has failed to demonstrate that the trial court erred in applying the three enhancement factors and no mitigating facto rs and arrivingat a maximum sentence of tw o year s. Giving due deference t o the trial
cou rt in reviewing its presumptively correct sentence, we may not alter the5 Second offense DUI also carries a fine of $600 to $3,500. The defendant has not challenged the $1,700 fine s he received.

6 In her brief, Gann complains of the "l ong sentence," argues that a "substantially low

er sentence" is more appropri ate, and characterized the sentence as "excessiv

e," "inappropriate and harsh." H owever, she never explicitly devotes argu ment to altern ative sentencin g. 16 sentences imposed even if we might ha ve reached a different result. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).
Driving Under the Influence

For second offense DUI, the sentence imposed may be up to eleven months and 29 da

ys, wi th a manda

tory mi nimum of 4

5 da ys to be served in th e county jail. 5 Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 1996). Driving under the influence is a Class A misdemeanor. Tenn . Code Ann. § 55-10-403(m) (Su pp. 1996). As a misdemeanant, the defendan t is not entitled to a presumption of the minimum sente nce. State v. Creasy , 885 S.W.2d 829, 832-33 (Tenn. Crim. App. 1994). Moreover, on a DUI conviction, the defendant may be ordered to serve as much as 100 percent of her sentence in c onfinemen t. See Sta te v. Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995).

Viewing the applicable enhancement factors an d lack of mitigating facto rs in lig ht of the presume d correct ness of t he trial co urt's det erminat ion, we believe the trial court was well warranted in its decision to imp ose a mid-range sentence for DUI.

B

Finding no error in the applicati on of enhancement and mitigating factors, the remaining question i s whether the manner of serv ice of sentenc es is appropriate. 67 In light of the mandatory mini mum 45 days of confinement for second

offense DUI, the defendant is not elig ible for a completely probat ed sentence.
8 This arrest history was elicited from the stat e's rebuttal witness,a law enforcement officer. W hen the trial judge inquired at the sentencing about his suspicion that this evi dence may illustrate an al cohol problem, Gann's trial counsel conceded "Yes, Your Honor, and perhaps that might be, but that is probably in her younger years and not any time in the recent past." Further, Gann has two previous convictions related to the abuse of alcohol. 17 Gann's more serio us crime is a Class E felony. She is a Range I offender. Thus, i n the absence of evidence she is an offender for whom incarceration is a priority, she is pr esumed a favorabl e candid ate for a lternati ve senten cing. See Tenn. Code Ann. § 40-35-102(6) ( 1997); State v. Byrd , 86 1 S.W.2d 377, 379-80 (Tenn. Crim. App. 1 99 3). In such a case, the court must presumethat an alternati ve sentence will r esult in successful rehabil itation. See Ashby , 823 S.W.2d at 168-69. These presumptions may be overcome, however, byevidence to the contrary

. Ashby , 82 3 S.W.2d at 168-69. Additionally, the defendant is eligible for probation as a form of al ternative sente ncing. 7 See Tenn. Code Ann. § 40-35-303(a) (1997).

The trial court did not formall y de signate certain of its findi ngs as applicable to the issue of alternative sentencing. Nevertheless, its findings reflect appraisal of the appropriate considerati ons. The relevant findings of fact inc lude (1) that the defendant was untruthful, (2) that she exhibited a

lack of remorse, and(3) that she had "a history of frequenti ng beer joints andother establishments where intoxicatingliquors are serv ed," referring to evidence offered without objection that the defendant may ha ve an "alc ohol problem" as indicated by her past history of being arrested "in bars and such as that where she had been involved in stuff." 8 All of this evidence, particularly whenconsidered in the aggr egate, is indicativ

e of the defendant's substandard prospects for rehab ilitation. See Tenn. Code Ann. § 40- 35-103(5) (1997); State v. Bunch , 646 S.W.2d 158, 160- 61 (Tenn. 1983)18

(untruthfulness); State v. Pierson , 678 S.W.2d 905 (Tenn. 1984) (remorse); State v. Katherine H. Gallaher, No. 02C01-9508-CC-00248, slip op. at 3-4 (Tenn. Cr im. A p p., Jackson, Sept. 30, 1996) (continued abuse of alcohol), perm. app. denied (Tenn. 1997). A poor rehabilitati ve outlook is proper g rounds for rebuttal of the presumption of favorable c andidacy for alt ernative senten cing. See, e.g. , State v. David M. Allen , No. 01C01-9505-CC-00153, slip op. at 6 (Tenn. Crim. Ap p., Nashville, Apr. 26, 1996) (pres ump tion of f avorable candida cy for alte rnative sentencing rebutted in part by ev idence of de fendant's poor prospect of reha bilita tion), perm. app. denied (Tenn. 1996); State v. Joseph L. Powers , No. 02C01-9511-CR-00338, slip op. at 2-3 (Tenn. Cr im. App., Jackson, June 28, 1996).
Evading Arrest

In this case, the trial court implicitly found the pre sumptio n favoring alternat ive sentencing

rebutted for this defendant on the felony

convicti on. Th e record leads us to the conclusion that the court was greatly influenced by

its finding that Gann was untruthful about the facts g iving rise to the e vading arrest conv

iction. On de novo review

with a presumption of

correctness, we find that Gann has failed to carry the burden of demonstr ating that the sentence imposed w as improper.
Driving Under the Influence

Gann receiv

ed an alt

ernativ e senten ce of spl it confi nement fo r he r misdemeanor

DUI con viction. See State v. James A. Howard , No. 03C01-9608-CC00284, slip op. at

7 (Tenn. Crim. App., Knoxv ille, Feb. 24, 1997), pet. for perm. app. dismissed (Tenn. 1997); State v. James E. Allred , No. 03C01-9504-CR-00110, slip op. at 2 (Tenn. Cr im . App., Knoxville, M ar. 20, 1996); State v. Marjorie Je anette Sneed , No. 03C01-9410-CR-00369, sli p op. at 3 (Tenn. Crim. App., Knoxv ille, Oct. 17, 1995); Ernest Lee Lands, Jr. v. State , No. 03C01-9404-CR-00145, slip op. at 3 (T enn. Crim. App., Knoxvi lle, May 19, 1995), perm. app. denied (Tenn. 1995);19

State v. Danny

Allison , No. 03C01-9403-CR-00106, slip op. at 3 (Tenn. Crim. App., Knoxville, Mar. 23, 1995); State v. Alvin Lee Lewis , No. 01C01-9404-CC-00125, slip op. at 7-8 (Tenn. Crim. App., Nashvil le, Mar. 14, 1995), perm. app. denied (Tenn. 1995); see also Tenn. Code Ann. § 40-35-104(c) ( 1997). Thus, the only complaint the defendant could feasibly hav e with thi s senten ce is wheth er she sho uld have been granted a more favorable alternative. As we hav e previously observe d, "we will not second-guess the sentencing decision of the trial court as to

the particular alternat ive chosen unless the record es tabl i shes compelling reasons for us to do so." Danny

Allison , slip op. at 4. In this case, we are not so compelled, particularly in view of the defendant's poor prospect of rehabilitation.

For the f oregoing re asons, we a ffirm t he judgme nt below.

_______________________________ CURWOOD WITT, JUDGE

_____________________________ GARY R. WADE, JUDGE

_____________________________ WILLIAM M. BARKER, JUDGE