         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2006

    STATE OF TENNESSEE v. ERIC MICHAEL GOLDMAN AKA ERIC
                           FORREST

                  Direct Appeal from the Circuit Court for Marshall County
                            No. 16417    Donald P. Harris, Judge



                   No. M2006-00134-CCA-R3-CD - Filed December 29, 2006


The appellant, Eric Michael Goldman aka Eric Forrest, was convicted of driving after being declared
a habitual motor vehicle offender (Class E felony) and sentenced to four years in the Department of
Correction as a multiple offender. He was also found guilty of driving on a revoked license, tenth
offense (Class A misdemeanor), which was merged with the conviction for driving as a habitual
motor vehicle offender. On appeal, he contends that: (1) the evidence was insufficient to sustain
a conviction for the offense of driving after being declared a habitual motor vehicle offender; and
(2) the sentence imposed by the trial court is excessive and contrary to the law. After careful review,
we conclude that no reversible error exists and affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN , J., and
J. S. (STEVE) DANIEL, SR. J., joined.

Donna Leigh, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the
appellant, Eric Michael Goldman, aka Eric Forrest.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

         At trial, the first witness was Trooper Bob Logan of the Tennessee Highway Patrol who
testified that the underlying incident occurred on December 18, 2003, in Marshall County,
Tennessee. He said he spotted the defendant’s car being driven without a license plate about a half
mile from the trooper’s post. He estimated that he was one hundred yards from the car when he first
observed that it was without a license plate. He approached to within two car lengths and
determined the car did not have a drive out tag. He followed the car for two to three blocks until it
arrived at a BP gas station and parked at a gas pump. During the time he followed the car, he
observed only one person in the car. Trooper Logan parked at the side of the gas station building
and observed the defendant in the driver’s seat. He saw the defendant exit the car from the driver’s
side door and recalled seeing the defendant’s face clearly, because he estimated the area to be so well
lit that it would be ten out of ten on a brightness scale. When the defendant exited the building, the
trooper asked him to come to his patrol car. The defendant got into his own vehicle and drove to the
trooper’s car. The trooper testified that he walked to the defendant’s window and asked for the
defendant’s license and registration, which the defendant could not produce. The defendant told the
trooper that his name was “Eric Forrest.”

        The trooper testified that he checked the defendant’s name and date of birth and determined
that the defendant’s driver’s license had been revoked and, further, that he had previously been
declared a habitual motor vehicle offender in Maury County. He then arrested the defendant but
allowed him to stop by his home to turn off the lights and lock the doors before proceeding to jail.

        On cross-examination, Trooper Logan testified that, initially, he could not clearly see who
was driving the car but that he was able to see clearly when the defendant drove closer. Again, the
trooper said he was about two car lengths behind the defendant when they entered the grounds of the
BP station. On redirect, he said that the defendant never told him that someone else was driving the
car.

         Next, Kenneth W. Birdwell, Director of the Financial Responsibility Division of the
Tennessee Department of Safety, testified that his office contains records of habitual motor vehicle
offenders and of drivers whose licenses are revoked. He said that the records are kept as part of the
state’s business records and so that he can testify regarding the records. He testified that, according
to their records, Eric Michael Goldman and Eric Forrest is the same person. He said the defendant
was declared a habitual motor vehicle offender on October 7, 2002, prior to the date of the
underlying incident. He testified that a person declared a habitual motor vehicle offender is
ineligible to have their license restored before the expiration of three years. He also testified that the
defendant’s license was revoked at the time of the incident.

       Cathy Kelly, Circuit Court Clerk for Maury County, then testified that her office was
responsible for keeping the records and orders for the Circuit Court, including the habitual motor
vehicle offender orders. She testified as to the process followed in declaring a person a habitual
motor vehicle offender. She said that the defendant failed to appear or contest the habitual motor
vehicle offender proceedings and that a default judgment was taken. She said that she knew Eric
Michael Goldman and Eric Forrest to be the same person.

        The State rested its proof, and the defendant put on no proof in his defense. The trial court
conducted a jury out hearing in which the defendant: (1) waived his right to have the jury set his
fine; (2) agreed to let the court determine the number of his prior convictions for driving on a
revoked license; and (3) testified that he had made the decision not to testify in his own defense. The


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jury was then charged and returned a verdict of guilty as to both charges. The trial court merged the
driving on a revoked license conviction into the driving while declared a habitual motor vehicle
offender conviction.

        The trial court later conducted a sentencing hearing where two witnesses testified. The first
witness, an employee of the Probation and Parole Department assigned to the Marshall County
Circuit Court, testified that the defendant had previously been sentenced to probation or alternative
sentencing and that the defendant had violated those prior sentences. She also testified that the
defendant had previously been convicted of subsequent offenses while serving a sentence on
probation and, further, that he had a pending violation in Maury County General Sessions Court at
the time of the sentencing hearing in addition to pending charges occurring after the underlying
incident.

        The defendant testified that he had prior felony charges which were disposed of through the
court on the same day. He testified that his prior convictions were for third degree burglary and petit
larceny. He said the burglary occurred at a “junk store” and that the larceny conviction was for
stealing from a vending machine. In addition, he was apprehended with burglary tools, drug
paraphernalia, and marijuana for resale. He claimed that he was told that the District Attorney haD
spoken to the jury during the course of the trial without the judge or defense counsel present, but he
refused to reveal the source of this information.

        At the conclusion of his testimony, the State recommended the defendant be sentenced to
four years incarceration as a Range II offender, to be served at 35%. In support thereof, the State
cited that the defendant had previously been on alternative sentencing without success and that he
had been charged with other offenses since the time of the underlying arrest. The State asked that
the court allow no form of alternative sentencing, including work release. The defendant requests
to be sentenced as a Range I standard offender and argues that the State failed to establish that he
was a Range II offender.

        The trial court found that the defendant had two prior felonies in accordance with the law and
determined that he was a Range II offender. The trial court held that the defendant’s burglary
convictions were of the same course of conduct but that his drug conviction was separate conduct.
The trial court enhanced the defendant’s sentence citing two factors: (1) the defendant’s prior history
of criminal convictions in addition to those necessary to establish the range including numerous
arrests and convictions for driving on a revoked license, assaults, and drug offenses; and (2) the
defendant’s previous history of unwillingness to comply with the conditions of his release in the
community. The court found no mitigating factors. Accordingly, the trial court sentenced the
defendant to four years in the Department of Correction as a Range II standard offender. The
defendant filed a motion for new trial, but the motion was overruled by the trial court. This appeal
followed.




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                                                Analysis

         The defendant raises two issues on appeal: (1) the evidence was insufficient to sustain a
conviction for the offense of habitual motor vehicle offender; and (2) the sentence imposed by the
trial court was excessive and contrary to the law. The State contends that the evidence was sufficient
and that the sentence is just.

I. Sufficiency

       The defendant contends that the trooper never saw him driving the car and alleges that the
trooper only saw the defendant exit the store and walk over to the car. He contends that the
testimony at trial was purely speculative as to whether the defendant was driving and claims that the
evidence at trial was highly circumstantial and did not carry the required burden of proof. The State
contends, and we agree, that the proof in the record supports the finding that a rational trier of fact
could convict the defendant for driving after being declared a habitual motor vehicle offender.

        At trial, the testimony of Trooper Logan showed that the defendant was driving in Marshall
County, Tennessee. The trooper testified that he got a good look at the defendant’s face and
confirmed that the defendant was the only person in the vehicle. The defendant moved his vehicle
next to the trooper’s vehicle where it was determined the defendant was a habitual motor vehicle
offender whose license had been revoked.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
State the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, “[a] guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).



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        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        We conclude that the defendant has not met his burden of illustrating that the evidence is
insufficient to support the verdict of the trial court.

II. Excessive Sentence

        The defendant contends that the trial court erred in imposing a sentence of four years to be
served in the Department of Correction. He contends that the offense did not merit a maximum
sentence and argues that a lesser sentence would still serve the purpose of the Tennessee Criminal
Reform Act. He argues that the trial court erred in determining that his three prior felonies were not
a single course of conduct even though they all occurred within twenty-four hours. The State argues
that the trial court properly followed the sentencing guidelines and that no error exists.

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. T.C.A. § 40-35-401(d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles and all relevant facts
and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to
comply with the statutory directives, there is no presumption of correctness and our review is de
novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is improper. T.C.A.§ 40-
35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant
to Tennessee Code Annotated section 40-35-210(b), to consider the following factors in sentencing:
       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
       presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
       alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
       [e]vidence and information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
       to make in the defendant’s own behalf about sentencing.

        If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses will be the
minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors
do exist, a trial court should enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. T.C.A. § 40-35-
210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor is
prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court
as long as the trial court complies with the purposes and principles of the sentencing act and its


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findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App.
2002); see T.C.A. § 40-35-210, Sentencing Commission Comments. Nevertheless, should there be
no mitigating factors, but enhancement factors are present, a trial court may set the sentence above
the minimum within the range. T.C.A. § 40-35-210(d); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn.2002).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we had preferred a different result. State v.
Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Here, the defendant was convicted for driving after being declared a habitual motor vehicle
offender, a Class E felony. The trial court determined that the defendant was a Range II offender
based on his prior felony convictions. The defendant, in fact, had three prior felony convictions, but
the trial court considered two of the prior convictions to be part of a single course of conduct
committed within a twenty-four-hour period, in compliance with Tennessee Code Annotated section
40-35-106(b)(4) (2003). The trial court considered the defendant’s separate drug possession
conviction to be a separate course of conduct despite the fact that it occurred in the same twenty-
four-hour period. These separate convictions were enough for the trial court to determine the
defendant was a Range II offender.

        In his brief, the defendant erroneously relies on the multiple offender statute, T.C.A.§ 40-35-
106, as it was amended in 2005. The statute defining a defendant as a multiple offender was
amended in 2005. The defendant here was properly tried and sentenced under the prior law and,
after our review, we find no reversible error exists to disturb the judgment of the trial court. At the
time of the underlying offense, convictions for multiple felonies committed as part of a single course
of conduct within twenty-four hours were to constitute one conviction for purposes of determining
prior convictions as relates to a defendant’s sentencing range. See T.C.A. § 40-35-106 (2003). In
2005, the statute was amended to count all convictions that occurred within a twenty-four-hour
period as one conviction except for those convictions that involve serious bodily injury, bodily
injury, or threatened bodily injury to the victim or victims. T.C.A. § 40-35-106 (2006). After
thorough review, we conclude that the trial court properly determined that the defendant’s prior
convictions were not of a single course of conduct and, accordingly, properly sentenced the
defendant as a Range II offender. The defendant’s prior convictions for burglary and possession of
a controlled substance for resale, though rising from the same arrest, were not linked in any other
way and thus were properly considered as separate convictions. Our review reflects that the trial
court followed the statutory sentencing procedure, imposed a lawful sentence after giving due
consideration and proper weight to the factors and principles set out under sentencing law, and the
trial court’s findings of fact are adequately supported by the record. We affirm the sentence of the
trial court.




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                                            Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgments of the trial
court.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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