        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 17, 2009

             STATE OF TENNESSEE V. ANGELA ANN COLLINS

                     Appeal from the Circuit Court for Dickson County
                      No. 22CC-2008-CR-415 George Sexton, Judge



                  No. M2008-02766-CCA-R3-CD - Filed January 25, 2010


Appellant, Angela Ann Collins, was indicted by the Dickson County Grand Jury for driving
under the influence (“DUI”) and violation of the implied consent law. She was convicted
by a jury. Appellant appeals her conviction and the sentence imposed by the trial court.
Because we determine that the evidence was sufficient to support the conviction and that the
trial court did not abuse its discretion in sentencing Appellant, the judgment of the trial court
is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
C AMILLE R. M CM ULLEN, JJ., joined.

William B. Lockert, III, District Public Defender and Lila Kathleen Mitchell, Assistant
District Public Defender, for the appellant, Angela Ann Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; and Dan Alsobrooks, District Attorney General, for the appellee, State of
Tennessee.
                                                 OPINION

                                           Factual Background

        Appellant was arrested on February 9, 2008, for DUI in Dickson County. Upon her
arrest, she refused to submit to a breath test, so she was cited for violation of the implied
consent law. In July of 2008, the Dickson County Grand Jury returned an indictment in
which Appellant was charged with DUI and violation of the implied consent law.

       A jury trial was held. According to a Statement of the Evidence, Deputy Mike
Eggiman observed a vehicle driving erratically on Highway 46 in Dickson, Tennessee on
February 9, 2008. After the vehicle crossed the fog line three times, Deputy Eggiman pulled
the vehicle over. The vehicle turned left to park in the lot at a Pilot Station but instead
parked on the right hand side of Livestock Road. Appellant was the driver of the vehicle,
and Ramon Alvarez was the passenger. Deputy Eggiman testified that both had the “strong
odor of intoxicant.”

       Deputy Eggiman asked Appellant to perform the “walk and turn” as well as the “one
leg stand” field sobriety tests. Deputy Eggiman demonstrated them on the side of the road
where there was a line. Appellant tried the “walk and turn” and “on the first nine steps, there
were three steps with large gaps between heel and toe, four steps were off the line and
[Appellant] used her arms for balance.” The second time she tried, Appellant missed the heel
and toe four times and stepped off the line three times.

       Despite claiming that she took yoga, Appellant placed her foot down six times and lost
her balance two times. Appellant claimed that she consumed one or two beers and was the
designated driver for Mr. Alavarez.

       Mr. Alvarez was not arrested. He was allowed to leave the scene with his wife.1

       After her arrest, Appellant refused to submit to the breath test. There was no
videotape of the incident.

       Appellant testified during trial that she was the designated driver and had “about one
and one half beers at 10:00 p.m. at Otto’s Bar.” Appellant claimed that “irregular pavement”
and two-and-a-half inch heels prevented her from performing the field sobriety tests.
Further, Appellant claimed that she was “distracted” by the large trucks pulling off the

       1
           It is not clear from the record whether his wife was present at the scene.

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highway into the Pilot Station. Appellant did not take the breath test because she felt Deputy
Eggiman did not treat her with respect.

       Lisa Johnson, an investigator with the Public Defender’s Office, testified that the site
where Appellant was pulled over had irregular pavement and was unmarked by any lines.
She also testified that there was a high volume of large truck traffic in the area.

        Mr. Alvarez testified that Appellant was his designated driver on the night of the
arrest and was sober after having one or two drinks during the evening.

       The jury returned a guilty verdict for DUI after listening to the evidence. The trial
court sentenced Appellant to eleven months, and twenty-nine days, ordering Appellant to
serve seven days in incarceration and the balance of the sentence suspended. Appellant was
also ordered to pay $350 in fines and costs, attend alcohol safety school, and surrender her
driver’s license for one year.

       Appellant filed a timely notice of appeal.

                                           Analysis

       On appeal, Appellant argues that the evidence is insufficient to support her conviction
for DUI and that the trial court imposed an excessive sentence. The State argues that the
evidence was ample to support the conviction and that Appellant waived any challenge to her
sentence by failing to include a transcript on appeal.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting

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proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805
S.W.2d at 779. Further, questions of witness credibility, the weight and value of evidence,
and resolution of conflicts in the evidence are entrusted to the trier of fact. State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996).

         Tennessee Code Annotated section 55-10-401(a)(1) states, “It is unlawful for any
person to drive or to be in physical control of any automobile or other motor driven vehicle
on any public roads . . . while: (1) Under the influence of any intoxicant. . . .” On appeal,
Appellant argues that the evidence was insufficient to meet the requirements of this statute
because of her testimony and the testimony of her witnesses. However, as stated above, the
trier of fact makes the final determination as to the credibility of the witnesses and the weight
and value to be given to evidence. Pruett, 788 S.W.2d at 561. Clearly, the jury determined
the officer’s testimony to be more credible and have more weight than that of Appellant’s
witnesses.

       When viewing the evidence in a light most favorable to the State, Deputy Eggiman
saw Appellant crossing the fog line on three occasions. After being pulled over, Deputy
Eggiman smelled alcohol on Appellant. He administered both the walk-and-turn and the
one-legged stand test. Appellant was unable to perform either test. This is adequate
evidence for a reasonable trier of fact to conclude that Appellant was under the influence of
an intoxicant.

       Therefore, this issue is without merit.

                                          Sentencing

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-
302, which provides in part that the trial court shall impose a specific sentence consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See T.C.A.
§ 40-35-302(b). Misdemeanor sentencing is designed to provide the trial court with
continuing jurisdiction and a great deal of flexibility. See State v. Troutman, 979 S.W.2d
271, 273 (Tenn. 1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One
convicted of a misdemeanor is not entitled to a presumptive sentence. See State v. Creasy,
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the
court is required to provide the defendant with a reasonable opportunity to be heard as to the
length and manner of service of the sentence. T.C.A. § 40-35-302(a). The trial court retains

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the authority to place the defendant on probation either immediately or after a time of
periodic or continuous confinement. T.C.A. § 40-35-302(e). In determining the percentage
of the sentence to be served in actual confinement, the court must consider the principles of
sentencing and the appropriate enhancement and mitigating factors, and the court must not
impose such percentages arbitrarily. T.C.A. § 40-35-302(d).

        At the outset, we note that the State argues Appellant has waived a review of her
sentence due to her failure to include a transcript of the sentencing hearing. In the present
case, the parties submitted a statement of the evidence rather than a transcript of the trial.
The statement of the evidence reflects that the trial court held a separate sentencing hearing
prior to sentencing Appellant to serve seven days in incarceration. The statement of the
evidence fails to reflect the considerations the trial court found significant in imposing a
sentence involving seven days of jail service on a first offense DUI conviction. There is no
transcript of the sentencing hearing in the record on appeal. An appealing party has a duty
to provide a complete record to enable meaningful appellate review. See Tenn. R. App. P.
24. As the Appellant has failed to do so, we are unable to consider this issue. See State v.
Matthews, 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990). When the record is incomplete,
we must presume that the judgment of the trial court was correct. Id. This issue is waived.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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