         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 2, 2004 Session

                  STATE OF TENNESSEE v. BILLY GENE RICH

                  Direct Appeal from the Circuit Court for Chester County
                            No. 02-180    Roger A. Page, Judge



                     No. W2003-01495-CCA-R3-CD - Filed May 28, 2004


The Appellant, Billy Gene Rich, was convicted of driving under the influence (DUI), second offense,
and was sentenced to serve eleven months and twenty-nine days in jail. On appeal, Rich argues that:
(1) the evidence is insufficient to support his conviction and (2) his sentence is excessive. After
review, the conviction and sentence are affirmed.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for the Appellant, Billy Gene Rich.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; James G. Woodall, District Attorney General; and Angela R.
Scott, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background


        After completing a contract in California, the Appellant, a sixty-two year old commercial air-
conditioning engineer, began driving back to his home in Tennessee. After spending the night of
April 11th in Phoenix, the Appellant drove straight through to Tennessee, only stopping for
occasional naps at rest areas. According to the Appellant, he arrived home on the following
afternoon and, after taking care of some business, paid a visit to the Pass Time Bar in Chester
County. He testified that while there he played several games of billiards and consumed no more
than four beers. When the bar closed at midnight, the Appellant began driving home. According
to the Appellant, he became too drowsy to drive and pulled off the road to sleep.
        At approximately 1:30 a.m. on April 14, 2002, Chester County Sheriff’s Deputy Mark Griffin
was dispatched to Old Jacks Creek Road to investigate a call that a van was parked on the side of
the road. According to the property owner, the van had been parked there for some time, and he was
unable to awaken the driver. When Deputy Griffin arrived, the engine was running, and the
Appellant was seemingly asleep behind the steering wheel.

        The deputy, after having difficulty rousing the Appellant, asked him to step out of the
vehicle. According to the deputy, the Appellant had trouble standing up, had to be assisted in
walking, and was unable to remove his wallet without assistance. The Appellant was basically
incoherent and could not explain where he was or how he got there. Due to the Appellant’s
condition at the time, Griffin felt that it would be unsafe to ask him to perform any field sobriety
tests. The Appellant was placed in custody and transported to the Chester County Jail. At the jail,
he refused to take a breathalyzer test.

         Following a jury trial on March 26, 2003, the Appellant was convicted of DUI. After waiver
of his right to a jury determination of enhanced punishment, the trial court found the Appellant guilty
of DUI, second offense. Following a sentencing hearing, the Appellant received a sentence of eleven
months and twenty-nine days. However, at the hearing, the trial judge expressly provided that the
Appellant could apply for suspension of the balance of the sentence after serving sixty days in jail
and completing a twenty-eight day in-patient alcohol treatment program. This appeal followed.

                                              Analysis

        On appeal, the Appellant raises two issues for our review: (1) whether the evidence is
sufficient to support the conviction and (2) whether the sentence imposed is excessive.

1. Sufficiency of the Evidence

         In considering this issue, we apply the rule that, where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        It is unlawful for any person to drive or to be in physical control of an automobile on any of
the public roads and highways of the state while under the influence of an intoxicant. Tenn. Code
Ann. § 55-10-401(a)(1) (2003). The Appellant was found in his van, on the side of the road, with
the key in the ignition, and the engine running. Clearly, he was in physical control of the vehicle on


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a public road. See State v. Corder, 854 S.W.2d 653, 654 (Tenn. Crim. App. 1992). Moreover, the
evidence established that the Appellant was under the influence of an intoxicant on this occasion.
The jury in this case heard proof of the Appellant’s demeanor, his inability to stand or walk without
assistance, his incoherent responses, and his admission that he had consumed alcohol. In light of
this proof, the trier of fact could have reasonably concluded that the Appellant was in physical
control of his vehicle while under the influence of an intoxicant. This issue is without merit.

2. Sentencing

         As his second issue, the Appellant asserts that the sentence imposed by the trial court was
excessive and that the trial court erred by considering evidence from a prior trial in its sentencing
decision. When an accused challenges the length, range, or manner of sentence, this court has a duty
to conduct a de novo review of the sentence with a presumption that the determinations made by the
trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). This presumption is "conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances." Ashby, 823
S.W.2d at 169. The burden is on the defendant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments.

        DUI, second offense, is a class A misdemeanor. Misdemeanor sentencing is controlled by
Tennessee Code Annotated section 40-35-302 (2003), 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. State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). More flexibility is
extended in misdemeanor sentencing than in felony sentencing. Unlike felony sentencing, defendants
are not entitled to a presumptive minimum sentence in misdemeanor sentencing. State v. Creasy, 885
S.W.2d 829, 832 (Tenn. Crim. App. 1994).

         Our legislature has provided that a defendant convicted of second offense DUI “shall be
confined in the county jail or workhouse for not less than forty-five (45) days nor more than eleven
(11) months and twenty-nine (29) days.” Tenn Code Ann. § 55-10-403(a)(1) (Supp. 2003).
Additionally, the statute provides that, after a conviction for DUI, second offense, “a judge may
sentence such person to participate in a court approved alcohol or drug treatment program.” Id. In
effect, the DUI statute mandates a maximum sentence for a DUI conviction, with the only function
of the trial court being to determine what period above the minimum period of incarceration
established by statute, if any, is to be suspended. State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim.
App. 1996).

         First, the Appellant argues that the trial court in setting his sentence incorrectly considered
evidence from his prior conviction of driving while impaired. We note initially that the State is
correct in their assertion that the Appellant has waived this argument for failure to cite to authority
in support of his contention. See Tenn. R. App. P. 27(a)(7). Nonetheless, our review of the record
fails to reveal error. Nowhere in the record does the trial court rely upon inappropriate facts or
circumstances from the Appellant’s prior driving while impaired conviction in arriving at its
sentencing determination.

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        In his second sentencing issue, the Appellant argues that the sentence imposed is excessive.
The trial court sentenced the Appellant to a term of eleven months and twenty-nine days. However,
as a condition of the sentence, the court stated that “[a]fter you’ve served 60 days of that, you may
go into an in-patient alcohol treatment facility for 28 days. If you successfully complete that, I will
consider suspending the remainder of your sentence and letting you serve it on probation.” This
condition was noted on the judgment of conviction document.

         We conclude that the sentence as fashioned by the trial court is neither excessive nor
inconsistent with sentencing principles. At the sentencing hearing, the trial court noted the
Appellant’s obvious alcohol problem. The potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative or length of
term to be imposed. Tenn. Code Ann. § 40-35-103(5) (2003). Moreover, our Sentencing Act
encourages effective rehabilitation through the use of sentencing options that elicits the voluntary
cooperation of the defendant. Tenn. Code Ann. § 40-35-102(3)(c) (2003). In this case it is apparent
that the trial court was attempting to structure a sentence involving aspects of both rehabilitation and
voluntary cooperation. Accordingly, we find the sentence as imposed is proper.

                                          CONCLUSION

        Based upon the foregoing, we affirm the Appellant’s conviction for DUI, second offense, and
the sentence as imposed by the Chester County Circuit Court.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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