# FILED
July 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9708-CC-00301 Appellee, ) ) LAKE COUNTY VS. ) ) HON. J. STEVEN STAFFORD, MELVIN BOYD, JR., ) JUDGE ) Appellant. ) (Motor Vehicle Habitual Offender)

FOR THE APPE LLANT: FOR THE APPELLEE:
G. STEPHEN DA

VIS JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter P. O. Box 742 Dyersburg, TN 38025-07 42 GEORGIA BLY THE FELNER Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 C. PHILLIP BIVENS District Attorney General P. O. Drawer E Dyersburg, TN 38024

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N
Followinga jury trial, the defendant was found guilty

of driving after havi ng been declared a

motor vehicle habitual offender pursuant toT.C.A. § 55-10-616. The trial court sentenced him to two year s in the Tennessee Department of Corr ection. He now appeals as of right, challenging the sufficiency of the evidence to support his conviction and arguing that the tria l court erre d in faili ng to cons ider and o rder an al ternative sentence. Finding no merit in the defendant’s arguments, we affirm his co nviction and sentence.

Ms. Brenda Pruitt testified that on June 3, 1996, she was involved in a traffic accidentwith the defendant in Lake County, Tennessee. The defendant offered her one hun dred dollar s ($100) if she would not call the police since he did not have a valid driver’s license.Ms. Pruitt refused the money and told the defendant she was going to call the police. The defendant immediately left the scene of the accident, clai ming h e needed to go to his mother’s house . As he left, Ms. Pruitt copied the defendant’s license plate number. When the police arrived at the scene of the ac cident, Ms. Pruitt

told the officer what happened and gave hi m a description of the defendant, a description of the red truck he was driv

ing, and the defendant’s license plate number. An investigation into the license plate number rev ealed that the truck was regis tered to the defendant. Both the truck and the defendant matched Ms. Pruitt’s descr iption s. Moreover, Ms. P ruitt positively identified the defendant at trial.

One of the defendant’s sons, E ddie, testified that the defendan t had sold th e truck i n question to him prior t o June 3, although he was un sure of the date. According to Eddie’s testimony, w hen he bought the truck from the defendant, he3

replaced the defendant’s license plate with a temporary tag, but he c ould not explain how the license plate number Ms. Pruitt copied traced ownership of the truck that hit her to the defendant. The defendant, his wife, and another of his sons, S hane, also testified at trial that the defendant had sold his truck to his son prior to June 3, but none of them could agree upon the date the defendant supp osedly sold the truck, nor could they produce any documentation evi dencin g the sale or transfer of title. Moreover, Shane and Eddie testified that on June 3, the defend ant had been in Lawrenceburg, Tennessee, helping them roof a house. Eddie testified that the tr uck in questio n was with them in Lawrenceburg, but Shane tes tified that the truck was not at the work site on J une 3.

The defendant first argues that the ev idence presented at

trial is insufficient to find him guilty of

operating a motor vehic le after having been declared a motor vehicle habit ual offender and having his driv er’s license revok

ed. This Court will

not disturb a verdict of guilt for lack of sufficient evidence unless the defendant il lustrateshow the facts contained in the record and any inferences which may be drawn from the facts are insufficient, as a matter of law, for a ration al trier of fact to find the defendant gui lty beyond a reasonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982)

. A guilty verdict rendered by

the jury and approved

by the trial judge a

ccredits the testimony of the State’s witnesses,and a presumption of guilt repl aces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

“Any person found to be an habitual off ender under the p rovisions of this part who thereafter is convicted of operating a motor vehicle in this s tate while the judgment or order of the court prohibiting such operation is in effect commits a Class E felony.” T .C.A. § 55-10-616(b). The Stat e and the defendant agreed to introduc e into evidence a copy of a 1990 order declaring the defendant to be a m otor vehicle habitual4

offenderand revoking his dr iver’s license as a result. Thus, the on ly issue at tr ial was whether the defendant operated a motor vehicle in Tennessee on June 3, 1996. See id.
Here, there w

as suffi cie nt evidence for the jury to conclude that the defendant drove a motor vehicle in Tennessee on June 3. Ms. Pruitt positively identified the defendant as the man who was driv ing the red truck that hi t her car in Lake County, Tennessee, on June 3. The license plate number she reported to the police was trac ed to the defendant. Although the defendant’s and his family’s testimon y was, for the most part, contradictory to the findi ng of guilt, it was also quite inconsistent. The jury obviously discredited their testimony, wh ich is its prerogati ve. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This issue lac ks merit.
The defendant next argues that the tr ial court erre d in denyin g alterna tive sentencing. The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. When a defenda n t complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). This presumption, however, “is conditioned upon the aff irmat ive showing in the record that the trial c ourt considered the sentencing princ i ples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Because the defendant does not fall wi thin the parameters of T.C.A. § 40-35-10 2(5) and i s a standa rd offe nder con victed of a Class E f elony, he “is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” T.C.A.§ 40-35-102(6). In this c ase, even though the trial judge did not expressly state that

he began with the presumpti on that the defendant was a favorable5

candidate for alternative s entencing, his findings mak e it clear that

the State overcame the presumption by presenting ample evidence of

the defendant’s longcriminal h istory, which includes prior conv ictions for driving

with a revoked li cense and driving under the influence; the defendant’s unwillingness to comply with the conditions of his prior release in t he comm unity; an d the def endant’ s lack of p otentia l for reha bilitati on. Thus , we conclude that a sentence of two years’ confinement was appropriate for the defendant. See State v. Toney L. Mo ore , C.C.A. No. 01C01-9609-CC-00392, Williamson County (Tenn. Crim. App. filed October 16, 1997, at Nashville).

In sum, the evidence in the record is sufficient t o support the defendant’s conviction and sentence. A ccordingly, the tr

ial court’s judgment i s affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ THOMAS T. W OODALL, Judge