            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE             FILED
                                APRIL 1998 SESSION
                                                              July 31, 1998

                                                         Cecil W. Crowson
STATE OF TENNESSEE,               *    C.C.A. # 01C01-9708-CC-00321 Clerk
                                                       Appellate Court

             Appellee,            *    MARSHALL COUNTY

VS.                               *    Hon. Charles Lee, Judge

CRAIG A. HAZLETT,                 *    (Habitual Motor Vehicle Offender and

             Appellant.           *    Driving on a Revoked License)




For Appellant:                         For Appellee:

Curtis H. Gann                         John Knox Walkup
Assistant Public Defender              Attorney General and Reporter
Seventeenth Judicial District
105 South Main                         Georgia Blythe Felner
P.O. Box 1119                          Counsel for the State
Fayetteville, TN 37334                 Cordell Hull Building, Second Floor
(on appeal)                            425 Fifth Avenue North
                                       Nashville, TN 37243-0493
Michael D. Randles
Assistant Public Defender              J. B. Cox
105 South Main                         and
P.O. Box 1119                          Weakley E. Barnard
Fayetteville, TN 37334                 Asst. District Attorneys General
(on trial)                             Room 407, Marshall County Courthouse
                                       Lewisburg, TN 37091




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                      OPINION

             The defendant, Craig A. Hazlett, was found guilty of one count of

driving after being declared a Habitual Motor Vehicle Offender and one count of

driving on a revoked license. The trial court imposed a Range II sentence of three

years, four months in the Department of Correction. Fines totaled $350.00. The

trial court merged the driving on a revoked license count into the greater offense.



             In addition to his challenge to the sufficiency of the evidence for driving

after being declared a Habitual Motor Vehicle Offender, the defendant contends that

the sentence is excessive. We find no error and affirm the judgment of the trial

court.



             Near midnight on June 6, 1996, Deputy Phillip Klarer of the Marshall

County Sheriff's Department was on patrol on Farmington Belfast Road when he

noticed a car being driven by the defendant with a missing taillight and expired tags.

When the officer turned on his emergency lights, including "takedown" lights which

are designed to allow a view of the inside of the suspect vehicle, he observed the

driver move onto the lap of a passenger, later identified as Wysenita Hazlett. Officer

Klarer testified that a few seconds later, the passenger "got out from underneath

[the driver]" into the seat behind the steering wheel. The third person, who was in

the back seat, did not move. Officer Klarer identified the defendant as the driver.



             When questioned, the defendant admitted that his driver's license had

been revoked. When asked why he had switched seats, the defendant merely

shrugged his shoulders. Ms. Hazlett, the defendant's wife, did not have a driver's

license. It was stipulated at trial that the defendant had been declared a Habitual

Motor Vehicle Offender.


                                          2
              At trial, the defendant claimed that his wife had been driving the car.

He asserted that because the car was a compact with an automatic gear shift in the

console area, it was impossible for him to have switched places. The defendant

contended that he was teaching Ms. Hazlett how to drive. The defendant insisted

that he informed Officer Klarer at the scene that he was not the driver of the vehicle.



              Ms. Hazlett testified that their vehicle, a Renault, had bucket seats with

an automatic shift in the console. She identified the third person in the car as a Mr.

Shelton, who was not called as a defense witness. Ms. Hazlett claimed that she had

been driving the vehicle at the time the officer turned on his blue lights. She

contended that she was a little larger at the time of the arrest and that it would have

been impossible for her to have exchanged seats with her husband at that time.



              Initially, the defendant contends that no rational trier of fact could have

found the defendant guilty beyond a reasonable doubt. He insists that his testimony

and that of his wife was credible and consistent.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the evidence

are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575

S.W.2d 292 (Tenn. Crim. App. 1978). A conviction can be set aside only when a

reviewing court finds that the evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). In a jury

trial, a guilty verdict, approved by the trial judge, accredits the testimony of the

state's witnesses. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978).


                                            3
              Tennessee Code Annotated Section 55-10-616 prohibits one who has

been declared a Habitual Motor Vehicle Offender from operating a motor vehicle.

Here, the defendant stipulated that he had been declared a Habitual Motor Vehicle

Offender. The issue for the jury was whether to accredit the testimony of Officer

Klarer or that of the Hazletts. Because the officer claimed to have seen the

defendant driving the vehicle and, after it was stopped, observed him exchange

places with his wife, the jury acted within its prerogative in determining the presence

of the essential elements of the crime. In our view, their verdict satisfies the

standard described. Jackson v. Virginia, 443 U.S. 307 (1979).



              The defendant, who qualified as a Range II offender, committed a

Class E felony. As his next issue, he argues that the three-year, four-month

sentence is disproportionate in comparison to the severity of the offense.



              He also argues the trial court erred by ordering incarceration. He

contends that he is "not a threat to society and ... society needs no protection from

him." The defendant cites Tenn. Code Ann. § 40-35-103(1)(a) which governs when

a sentence "involving confinement" should be imposed. The defendant, thirty-eight

years of age at the time of sentencing, asserts that he has been employed by the

same company for twenty-four years, pays support for a child by a previous

marriage, and is now remarried. The record, however, demonstrates that the

defendant has been cited to court a number of times for failure to pay. At the time

of the sentencing, he earned approximately $300.00 per week. He asserts that his

crime was a non-violent offense and should not warrant such a lengthy term.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a


                                           4
presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). 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." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history, and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). There is no such presumption for a Class B felon. Tenn. Code Ann. § 40-

35-102(6). With certain statutory exceptions, none of which apply here, probation

must be automatically considered by the trial court if the sentence for each


                                           5
conviction is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).



              A sentence of split confinement involves the grant of probation after

the partial service of a sentence. Tenn. Code Ann. § 40-35-306. It may include a

jail or workhouse sentence of up to one year with the probationary term to extend for

any period thereafter up to the statutory maximum for the offense. Id.



              In calculating the sentence for Class B, C, D, or E felony convictions at

the time of these offenses, the presumptive sentence is the minimum within the

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement factors but no mitigating factors, the trial court

may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A

sentence involving both enhancement and mitigating factors requires an assignment

of relative weight for the enhancement factors as a means of increasing the

sentence. Tenn. Code Ann. § 40-35-210(e). The sentence may then be reduced

within the range by any weight assigned to the mitigating factors present. Id.



              As a Range II offender, the defendant faced a possible sentence of

two to four years. Tenn. Code Ann. § 40-35-112(b)(5). His criminal history includes

thirty-eight prior arrests or convictions, twenty-nine of which are for traffic-related

crimes. His record includes several DUI's, several instances of driving on a revoked

license, reckless driving, and several instances of driving after having been declared

a Habitual Motor Vehicle Offender. On his first such offense, he received a one-

year sentence with all but seventy-five days suspended. On his second, the

defendant received a two-year sentence to Community Corrections, which was later

revoked.




                                             6
              The trial court, which described the defendant as "likeable," concluded

that the defendant's conduct neither threatened nor caused serious bodily injury;

thus, a single mitigating factor applied. Tenn. Code Ann. § 40-35-113(1). Two

enhancement factors applied. The defendant had a previous history of criminal

convictions. Tenn. Code Ann. § 40-35-114(1). Also, the defendant had a previous

history of unwillingness to comply with sentences involving release in the

community. Tenn. Code Ann. § 40-35-114(8).



              The record demonstrates that the trial court carefully considered the

good qualities of the defendant. Its primary concern was the defendant's continuing

unwillingness to abide by his terms of release. We agree. The number of driving

offenses the defendant has accumulated over the last fifteen years is incredible.

The lack of an operator's license has rarely been a deterrent to his inclination to

drive. Because the trial court considered the sentencing principles and all relevant

facts and circumstances, the Range II sentence of three years and four months is

entitled to the presumption of correctness. The defendant has failed to overcome

that presumption.



              Nor can we conclude the trial court erred by denying an alternative

sentence. As a Range II offender, the defendant is not entitled to the presumption

in favor of an alternative sentence. See Tenn. Code Ann. § 40-35-102(b).

Moreover, the defendant's lengthy criminal history and his refusal to comply with

terms of a sentence involving release into the community fully warrants the denial of

an alternative sentence. See Tenn. Code Ann. § 40-35-103(1)(c).



              Accordingly, the judgment is affirmed.




                                           7
                                ________________________________
                                Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L. T. Lafferty, Special Judge




                                8
