         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 1, 2006

                    STATE OF TENNESSEE v. RONALD CROOK

                       Appeal from the Criminal Court for Shelby County
                         No. 04-08273    James C. Beasley, Jr., Judge


                      No. W2005-02476-CCA-R3-CD - December 6, 2006


The Appellant, Ronald Crook, was convicted by a Shelby County jury of driving under the influence
(DUI), first offense, and reckless driving. As a result of these convictions, Crook received
concurrent sentences of eleven months, twenty-nine days with service of four days for each
conviction. On appeal, Crook argues that the evidence is insufficient to support his convictions and
that his sentences are excessive. After review, the judgments of conviction and resulting sentences
are affirmed.

                Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
ROBERT W. WEDEMEYER , J., joined.

Robert Jones, Shelby County Public Defender; Phyllis Aluko (on appeal) and Michael Johnson (at
trial), Assistant Public Defenders, Memphis, Tennessee, for the Appellant, Ronald Crook.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

         The facts as developed at trial establish that on July 30, 2004, Landon and Therese Despeaux
were taking their family out to eat when Mr. Despeaux looked in his rear view mirror and saw that
a car had hit a telephone pole. Despeaux intended to return to the accident scene and check on the
driver, but, before he could do so, the driver put his car in reverse and drove back onto the street into
traffic. Mr. Despeaux proceeded to the restaurant and, upon entering the parking lot, noticed that
the car involved in the wreck had followed him onto the parking lot and parked next to the
Despeauxs’ van. The driver, identified as the Appellant, got out of the car, accusing Mr. Despeaux
of causing the accident. The Appellant then briefly returned to his car to get a note pad to record the
license plate number of the van. At this point, Mr. Despeaux told his wife to call the police. The
Appellant immediately returned and wrote down the van’s license plate number and continued the
confrontation with Mr. Despeaux on the sidewalk outside the restaurant. When the police arrived,
Mrs. Despeaux took their three children inside the restaurant and waited for the Appellant to leave.

        Patrol Officer Robert McKenzie and his partner, Officer Darrell Felton, were dispatched to
the restaurant parking lot and arrived at the scene around 7:00 P.M. Officer McKenzie testified that
there was some body damage to the right, front side of the Appellant’s car and that it had a flat tire.
He concluded that the effects of alcohol were “obvious” based upon a strong odor of alcohol about
the Appellant; that his eyes were “bloodshot, watery and sleepy”; that his speech was kind of
mumbled like the “slurred speech of somebody’s that’s been drinking”; and that he appeared to be
unsteady on his feet. Officer McKenzie called a DUI officer to administer the field sobriety tests.

       Officer Felton testified that, when they arrived, the Appellant and Mr. Despeaux were
standing outside their vehicles. Officer Felton interviewed the Appellant, who was adamant that Mr.
Despeaux had caused the accident. Officer Felton concluded that the Appellant’s ability to drive was
impaired based on the Appellant’s “demeanor, and appearance, his speech and odor of alcohol.”

         Officer C. A. Lewis, a DUI instructor and Field Training Officer certified in the use of the
Intoxilizer 1400, was dispatched to the scene. She noted that the Appellant had an odor of an
intoxicant about him; that his eyes were bloodshot and watery; that his speech was “thick-tongued
and slurred”; and that his walk from the car was “staggering and swaying.” She administered two
field sobriety tests. The first was the “one-leg stand” test, which the Appellant started to perform.
However, he then said he did not want to do it, and the test was stopped. The second test was the
“heel-to-toe” test, and the Appellant promptly stepped off the line and lost his balance on the turn.
Officer Lewis concluded that the Appellant was under the influence of alcohol. The Appellant
testified that he could not perform the tests because he had diabetic neuropathy in his feet and was
required to wear special shoes, although he was not wearing them that day. The Appellant submitted
to an Intoxilizer 1400 breath test, with the test results establishing a blood alcohol level of .15
percent.

        Officer McKenzie transported the Appellant to “the Med” to see if he needed medical
treatment for his diabetes. One of the staff took a blood sample and cleared the Appellant to be
taken to the jail. The hospital did not give the Appellant any medication or treatment.

         The Appellant testified that he was not intoxicated when he arrived at the restaurant, but he
admitted that, by the time the police arrived, “[he] was inebriated.” He explained that after he wrote
down the Despeauxs’ license plate number, he sat in his car, poured two twenty-four-ounce cans of
beer into a water bottle, and “guzzled” it. During the twenty minutes that the Appellant was waiting
to take the Intoxilizer test, he talked to Officer Lewis, but he did not tell her or the other officers that
he had just consumed two, twenty-four-ounce cans of beers.




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        The Appellant further testified that the officers misinterpreted the symptoms of low blood
sugar, which resulted from his diabetes, as evidence of intoxication. He testified that low blood
sugar caused him dizziness, confusion, and lack of motor skills. Additionally, the Appellant testified
that he had been diagnosed as suffering from depression and receives disability because of it. He
took Prozac twice a day, and the package had a label that warned him not to drink alcohol while
taking the medication.

        The Appellant stated that around 11:00 A.M., he ate lunch at home and went to a gym to
exercise. On the way home, he purchased two forty-ounce bottles of beer. Over the next four hours,
he drank one and one-half bottles of the beer he purchased. Around 5:30 P.M., he stopped at a
supermarket and bought the twenty-four ounce cans of beer, which he contends he “guzzled” while
waiting for the police at the restaurant parking lot.1 Based upon the Appellant’s admissions, he
consumed 108 ounces of beer between approximately 1:30 P.M. and 7:00 P.M., including his
assertion that forty-eight ounces of the beer was consumed on the restaurant parking lot.

         The Appellant testified that he was on his way home when a maroon van ran a stop sign, and
he had to slam on his brakes to avoid an accident. In trying to avoid the accident, the Appellant hit
a telephone pole, blowing out his tire and causing steam to pour out of his radiator. According to
the Appellant, he then backed up and drove onto the street, following the van so that he could get
its license plate number. He followed it down S. Perkins Rd., down Cole Rd., down St. Nick Dr.,
and through a parking lot to the Erin Way Shopping Center. He testified that he called his father
to pick him up and he did not intend to call the police that night.

        Doyle Crook is the Appellant’s father, and he testified that at 6:30 P.M., on July 30, 2004,
he received a phone call from his son, who said he had been involved in an accident and needed a
ride home. Mr. Crook and his wife went to the restaurant to pick up the Appellant. Mr. Crook
noticed that the right front tire was flat and that the right front fender was dented. They left the car
there for the night. Mr. Crook also testified that the Appellant is a diabetic and receives social
security disability benefits.

                                                       Analysis

        On appeal, the Appellant contends that the evidence was insufficient to allow a rational trier
of fact to find, beyond a reasonable doubt, that he was guilty of DUI and reckless driving. Our
standard of review when a defendant questions the sufficiency of the evidence on appeal is “whether,
after viewing the evidence in the light most favorable to the prosecution, 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). We do not reweigh the evidence; rather,
we presume that the jury has resolved all conflicts in the testimony and drawn all reasonable


         1
          Both Mr. and Mrs. Despeaux testified that, with the exception of approximately thirty seconds when the
Appellant retrieved a notepad from his car, he was continuously in their presence until the police arrived and, that at no
time did they observe the Appellant drinking beer.

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inferences from the evidence in favor of the state. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility
are to be resolved by the jury. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

I. Sufficiency of the Evidence

       a. DUI

      The Appellant was indicted on alternative counts of DUI by intoxication and DUI per se.
Tennessee Code Annotated section 55-10-401 states in pertinent part:

       (a) It is unlawful for any person to drive or to be in physical control of any
       automobile or other motor driven vehicle on any of the public roads and highways
       of the state, or on any streets or alleys, or while on the premises of any shopping
       center, trailer park or any apartment house complex, or any other premises which is
       generally frequented by the public at large, while:

       (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug
       producing stimulating effects on the central nervous system; or

       (2) The alcohol concentration in such person’s blood or breath is eight-hundredths
       of one percent (.08%) or more.

T.C.A. § 55-10-401 (2004).

         The Appellant concedes that he was involved in an accident, that he drove on public streets
to the shopping center, and that he was inebriated when the police arrived. He asserts, however, that
he was not intoxicated at the time of his accident, but rather drank two twenty-four ounce cans of
beer in his car while he was waiting for his father to pick him up. The credibility of a witness’
testimony is a matter which is entrusted exclusively to the jury as the trier of fact. Sheffield, 676
S.W.2d at 547; Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978). Obviously, based upon
the verdict, the jury chose not to accredit the Appellant’s testimony that his impairment occurred
while waiting for his father in the parking lot.

        Viewed in the light most favorable to the State, there is sufficient evidence from which to
find that the Appellant was guilty of DUI by intoxication. The Appellant admitted that he had
consumed sixty ounces of beer prior to leaving the roadway and striking a utility pole. Officer
McKenzie testified that there was an obvious odor of alcohol about the Appellant; that his eyes were
“bloodshot, watery and sleepy”; that his speech was “slurred speech of somebody’s that’s been
drinking”; and that he was unsteady on his feet. Officer Felton testified that the Appellant’s ability
to drive was impaired based on the Appellant’s “demeanor, and appearance, his speech and odor of
alcohol.” Officer Lewis testified that the Appellant could not complete two field sobriety tests and
noted his demeanor as “argumentative, inattentive and cocky.” Additionally, there is sufficient


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evidence to support the Appellant’s conviction for DUI per se based upon Officer Lewis’ testimony
that the Appellant’s blood alcohol level was .15 percent following the accident.2

         b. Reckless Driving

         The Appellant also asserts that the evidence is insufficient to support his conviction for
reckless driving. He argues that the evidence presented demonstrates that he drove safely because
he prevented a collision with the Despeauxs’ vehicle by driving onto the curb before striking the
utility pole. The State asserts the proof establishes that the Appellant is guilty of reckless driving.

        Tennessee Code Annotated section 55-10-205 (2004) provides that “[a]ny person who drives
any vehicle in willful or wanton disregard for the safety of persons or property commits reckless
driving.” To demonstrate willful or wanton disregard there must be a “heedless and reckless
disregard for another’s rights, with the consciousness that the act or omission to act may result in
injury to another.” State v. Wilkins, 654 S.W.2d 678, 679 (Tenn. 1993) (citing Burgess v. State, 369
S.W.2d 731, 733 (1963)). “Willful and wanton disregard for another’s safety is a factual question
properly determined from all the circumstances.” Wilkins, 654 S.W.2d at 680.

        In the light most favorable to the state, we conclude there is sufficient evidence to establish
that the Appellant drove with a willful and wanton disregard for the safety of others and is, thus,
guilty of reckless driving. The Appellant’s acts of reckless driving are evidenced by both the driving
of his vehicle over a curb and the striking of a utility pole and then reentering “traffic” while
operating his damaged vehicle with a flat tire and steam pouring from the radiator.

II. Sentencing

        The Appellant asserts that the imposed four-day periods of confinement for each conviction
is excessive. In DUI cases, Tennessee Code Annotated section 55-10-403(c) (2003) provides for a
maximum sentence of eleven months, twenty-nine days for each 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). The mandatory minimum sentence for a conviction of DUI, first offense, is forty-
eight hours. T.C.A. § 55-10-403(a)(1). The offense of reckless driving is a Class B misdemeanor,
with a maximum possible sentence of six months. T.C.A. §§ 55-10-205 (2003); 40-35-111(d)(2)
(2003).

        Appellate review of misdemeanor sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. T.C.A. § 40-35-401(d) (2003). The Appellant has
the burden of showing that the sentence is improper. T.C.A. § 40-35-401(d), Sentencing


         2
          The trial court merged the Appellant’s conviction for DUI per se (count 2) with DUI while intoxicated (count
1) and entered a judgment for DUI while intoxicated.



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Commission Comments. If the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
we may not disturb the sentence even if we would have preferred a different result. State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        A person convicted of a misdemeanor is not entitled to the presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The statutes governing
misdemeanor sentencing are designed to give trial judges flexibility in setting the length of time to
be served while providing for continuing jurisdiction so the sentence may be modified at a later time,
in the discretion of the court. T.C.A. § 40-35-302(d) (2003), Sentencing Commission Comments;
State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). In this case, the trial court applied
enhancement factor (11), that the Appellant had no hesitation about committing a crime when the
risk to human life was high, to both the Appellant’s convictions. See T.C.A. § 40-35-114(11)
(2003). This factor may be applied in DUI cases if the proof establishes, by a preponderance of the
evidence, “‘that other persons or motorists were either in the vicinity or placed at risk by Defendant’s
conduct.’” State v. Philip R. Haven, No. M2001-00332-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Dec. 30, 2002, perm. appeal denied (Tenn. 2002) (quoting State v. Janice Carol Biskner,
No. E2000-01440-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Nov. 13, 2001)). The record
supports the trial court’s application of enhancement factor (11) in the Appellant’s DUI sentence.

        With respect to the reckless driving sentence, we conclude that enhancement factor (11) is
so similar in purpose and definition to that of reckless driving that we afford this factor no weight
for sentencing enhancement purposes. As stated earlier, “[a]ny person who drives a vehicle in
willful or wanton disregard for the safety of persons or property commits reckless driving.” T.C.A.
§ 55-10-205. Because the Appellant is not entitled to the presumption of a minimum sentence in a
misdemeanor case and because the trial court is afforded wide latitude in misdemeanor sentencing,
we conclude that the trial court’s sentence of four days is justified based upon the Appellant’s
excessive level of intoxication and the nature and circumstances of the offense.

        Additionally, the record demonstrates that the Appellant remains unrepentant for his conduct.
In a pro se supplement to the motion for new trial, the Appellant requested that the trial court
consider a civil complaint which he had filed against the Despeauxs, asserting that they committed
perjury and “the intentional torts of Slander and Defamation” as prosecuting witnesses in the case.
See Troutman, 979 S.W.2d 271, 174 (Tenn. 1998) (sentencing court may consider information
relevant to defendant’s ability to be rehabilitated under T.C.A. § 40-35-103(6)). Accordingly, we
conclude that the Appellant’s argument that his sentences are excessive is without merit.

                                          CONCLUSION

        After review, the judgments of conviction for DUI and reckless driving, as well as the
resulting sentences imposed by the Shelby County Criminal Court, are affirmed.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE

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