            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998       FILED
                                                     October 29, 1998

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9707-CR-00287
      Appellee              )
                            )    KNOX COUNTY
vs.                         )
                            )    Hon. RAY L. JENKINS, Judge
CHARLES LEROY WOODS,        )
                            )    (Resisting Arrest, Disorderly Conduct,
      Appellant             )    Public Intoxication)



For the Appellant:               For the Appellee:

William L. Brown                 John Knox Walkup
706 Walnut Street                Attorney General and Reporter
Suite 902
Knoxville, TN 37902              Michael J. Fahey, II
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 Randall E. Nichols
                                 District Attorney General

                                 Zane Scarlett
                                 Asst. District Attorney General
                                 City-County Building
                                 Knoxville, TN 37902




OPINION FILED:

AFFIRMED AS MODIFIED



David G. Hayes
Judge
                                       OPINION



       The appellant, Charles Leroy Woods, appeals from the Knox County Criminal

Court jury verdict finding him guilty of the misdemeanor offenses of resisting arrest,

disorderly conduct, and public intoxication. The trial court imposed a sentence of six

(6) months with ninety (90) days to be served for resisting arrest and thirty (30) days

each for both disorderly conduct and public intoxication. The sentences were to be

served concurrently. In his appeal as of right, the appellant challenges the

sufficiency of the evidence related to each conviction. Second, he contends the trial

court abused its discretion denying his request for full probation ordering him to

serve ninety (90) days in the Knox County Jail.



       After a review of the record, we affirm the judgments of conviction; the

appellant’s sentence for resisting arrest is modified.




                                   BACKGROUND



       On the evening of November 11, 1995, Knoxville police officers, Robert

Soloman and Kenneth Robertson, responded to a domestic disturbance call at 408

Knox Avenue. The residents of the Knox Avenue address included the appellant,

his wife, Rebecca, his sister-in-law, Sandra Bullock, and the appellant’s parents,

Pauline and Charles Woods, Sr.



       The events leading to the police call involved a telephone conversation

between the appellant and his brother-in-law, David, who lives in Maynardsville.

The appellant is married to David’s sister, Rebecca. The appellant had called David

to request David’s assistance in discouraging Rebecca and her sisters, Sandra and

Dora, from “bar hopping.” The phone conversation escalated into a heated


                                         2
argument. After threats were made over the telephone, David advised that he would

be paying the appellant a visit. Anticipating an altercation, the appellant’s wife had

her sister, Sandra, telephone the police because she “didn’t want to see anybody

get hurt.”



        When the two officers arrived, the appellant was in his residence. Rebecca,

Sandra, and Dora were standing in the front yard and the appellant’s father,

Charles, Sr., was seated in his vehicle which was parked on the street. David was

en route from Maynardsville. One of the sisters directed the police to the parked

car. Upon approaching the vehicle, the officers observed a gun on the floorboard.

With weapons drawn, Charles, Sr., was removed from the car. The officers testified

that he “reached in and got the gun, and it was a toy gun.”1 As Mr. Woods was

being frisked by the officer, his wife came out of the house and pleaded with the

officers not to “mash” her husband in the stomach because “he’s sick; he’s got

everything under the sun wrong with him.” Testimony revealed the elder Mr. Woods

was 72 years old, that he has cancer and that he had an aneurism which resulted in

“a plastic tube in the large artery of his heart. . . fused into the arteries of his legs.”

Mrs. Woods stated, “I started crying and begging him to please quit before he killed

him.”



        During the commotion, the appellant entered the front yard yelling at the

officers to leave his father alone. Witnesses testified the appellant “was really

violent. . . in a rage,” “was cussin’ and kept runnin’ his mouth,” and that “[h]e was

very upset, very rude, intoxicated.” Officer Robertson stated the appellant “was

screaming at the top of his lungs.” Repeatedly, the officers told the appellant to

return inside, or they would arrest him. The appellant moved away from the officers,

however, no one, including the appellant, went inside.

        1
         Although vague reference was made to a “real gun” which was recove red from M r.
Wood’s vehicle after he had been removed from the car, no reference to such weapon was made
by Officer Soloman, the principal arresting officer, during his testimony. Moreover, no such
weapo n was intro duced at trial.

                                             3
       None of the witnesses for the State saw the appellant drinking; however, the

appellant testified he had one glass of vodka and orange juice. Both officers

testified they smelled alcohol on the appellant. Sandra and Dora both testified the

appellant appeared “drunk.” Another witness, Craig Hamilton, a civilian riding with

Officer Soloman, testified that the appellant was irate and appeared intoxicated.

Both officers perceived that the appellant was a danger to them.



       While Officer Soloman filled out a weapon confiscation report with Charles,

Sr., at the front of the vehicle, the appellant continued to argue with the officers

about “being heroes” and “to quit harassing his parents.” The appellant, his wife,

and mother all testified the officers were yelling and cursing them. Again, the

officers told the appellant to return inside.



       When escorting Charles, Sr., back to the house, the appellant and his mother

recounted an incident of Officer Solomon putting the toy gun in the face of Pauline

Woods telling her, “this will get you killed, little toy guns like this.” This alleged

incident sparked the final confrontation between Officer Soloman and the appellant.

While eight to ten feet away from Officer Soloman, the appellant stated, “If you’ll

take the gun and [your] badge off, I’ll kick your ass right here in the middle of the

street.” The appellant and his mother heard Officer Soloman say, “I’m tired of this

sh--.” Officer Soloman proceeded up the four foot embankment to place the

appellant under arrest.




       Officer Soloman testified when he went to grab the arm of the appellant that

the appellant lunged at him causing them both to fall and roll down the

embankment. The appellant was “kicking and fighting” until they stopped rolling at

the bottom of the incline. Officer Robertson turned to see the commotion and

immediately assisted Officer Soloman in handcuffing the appellant. Officer Soloman


                                           4
testified he attempted to use chemical spray to subdue the appellant, however, the

attempt failed. The appellant denied lunging at the officer stating he only tried to

avoid the falling down the embankment. The appellant testified the officer used

chemical spray on his face and struck him in the head with “something black.” After

handcuffing the appellant, the officers noticed blood on his forehead later requiring

six stitches at the hospital. Neither of the officers were injured. Finally, David

arrived at the scene but was quickly sent away by the officers. After the officers had

left the scene with the appellant, Sandra, Dora, and Rebecca, the appellant’s wife,

went “bar hopping” as previously planned.




                            I. Sufficiency of the Evidence



       The appellant challenges the sufficiency of the convicting evidence with

regard to each conviction. When a challenge is made on appeal to the sufficiency

of the convicting evidence, this court must adhere to certain well-established

principles. First, a jury conviction removes the presumption of innocence with which

a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Next, the State is

entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Moreover,

this court may not reweigh or reevaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Viewing the evidence under these criteria, it is this

court’s responsibility to affirm the conviction if the proof was sufficient for any

rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513 U.S.


                                           5
1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). This rule is applicable to

findings of guilt predicated upon direct evidence, circumstantial evidence, or a

combination of both direct and circumstantial evidence. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990).



                                        A. Resisting Arrest

          Within this conviction the appellant avers (1) that there was not credible

evidence the appellant intentionally prevented the officers from affecting an arrest

(2) that under Tenn. Code Ann. § 39-11-611 his force was justified when the law

enforcement officer used greater force than necessary to make the arrest.



          The jury found the appellant guilty of resisting arrest pursuant to Tenn. Code

Ann. § 39-16-602(a) (1991). 2 In order to obtain a conviction under this statute, the

State must prove that the defendant intentionally prevented or obstructed a known

law enforcement officer, “from effecting a stop, frisk, halt, arrest, or search of any

person, including the defendant, by using force against the law enforcement officer

or another.” Tenn. Code Ann. § 39-16-602(a). The proof establishes that the

appellant “lunged” at Officer Soloman upon placing him under arrest. The appellant

rolled down the embankment “kicking and fighting.” Various witnesses corroborated

these facts. Moreover, the appellant’s contention of self-defense was rejected as a

decision properly made by the trier of fact. See Arterburn v. State, 216 Tenn. 240,

391 S.W.2d 648, 653 (1965); see also Tenn. Code Ann. § 39-11-611(e) (1) and (2)

(1991). The proof in the record supports the appellant’s conviction for resisting

arrest.



                                      B. Disorderly Conduct


          2
         Although the appellant challenges his arrest under sufficiency of the evidence, this issue
is more properly brought as a challenge to an unlawful arrest. However, Officer Soloman was
authorized to arrest the appellant w ithout a wa rrant for a misde mea nor com mitted in h is prese nce.
See Tenn . Code A nn. § 40- 7-103(a )(1) (199 5 Supp .); Solom on v. State , 203 Tenn. 583, 315
S.W .2d 99 (1 958).



                                                   6
       Pursuant to Tenn. Code Ann. § 39-17-305(a)(1) (1991), the State must prove

the appellant was in a public place with the intent to cause public annoyance or

alarm while engaging in fighting or in violent or threatening behavior, as was

charged in count four of the indictment. The evidence presented at trial

demonstrated that the appellant was in front of the residence, “screaming at the top

of his lungs,” “violent,” and threatening to fight Officer Solomon. This challenge is

also without merit.



                                C. Public Intoxication

       In order sustain a conviction for public intoxication, this court must find that

the proof establishes the defendant was under the influence of an intoxicant in a

public place to the degree that he is a danger “to other persons or property; or. . .

unreasonably annoys people in the vicinity.” Tenn. Code Ann. § 39-17-310(a)(2)

and (3) (1991). The appellant and his wife testified he had one drink that evening at

dinner. Five other witnesses testified that he appeared intoxicated, while two of

them smelled alcohol. Both officers testified they felt he was a danger to

themselves and to others. We hold the evidence was sufficient.




                                     II. Sentencing



       Third, the appellant contends the trial judge erred in denying his request for

total probation requiring him to serve ninety (90) days in the Knox County Jail. The

trial court sentenced the appellant to “the Knox County Penal Farm for a period of

six months at a misdemeanor percentage of 75% percent; however, on payment of

the costs, all time with the exception of 90 days will be suspended” for resisting

arrest, a Class B misdemeanor. For disorderly conduct and public intoxication, both


                                          7
Class C misdemeanors, the trial court imposed the maximum sentence of “30 days

in each count at a misdemeanor percentage of 75 percent” with those sentences to

be served concurrently with the sentence for resisting arrest.



       When a challenge is made to the length or manner of service of a sentence,

this court conducts a de novo review with the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This

presumption, only applies, however, if the record demonstrates that the trial court

properly considered relevant sentencing principles. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The record does not reveal that the trial judge considered

the principles, purposes, and goals of the Sentencing Act in imposing the

sentences. Moreover, the trial judge failed to note the presence or absence of

mitigating or enhancing factors in imposing a period of incarceration. Although in

misdemeanor cases we have not required that trial judges explicitly list on the record

applicable enhancing and mitigating factors, State v. Baggett, No. 03C01-9401-CR-

00031 (Tenn. Crim. App. at Knoxville, July 11, 1995), clearly a discussion of those

factors would be the better practice for purposes of appellate review.



       The alternative sentencing provision of Tenn. Code Ann. § 40-35-104

provides that a misdemeanant, as well as the felon, is entitled to sentencing

alternatives. Tenn. Code Ann. § 40-35-104(a) (1995 Supp.). The appellant

contends that he should have been granted the sentencing alternative of full

probation which requires a separate analysis from that of alternative sentencing.

See State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1995). The defendant has the burden of establishing his suitability

for full probation in that probation will “subserve the ends of justice and the best

interest of both the public and the defendant.” Id. (citing State v. Dykes, 803 S.W.2d

250, 259 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1990); see also Tenn.

Code Ann. § 40-35-303(b) (1995 Supp.). When deciding suitability for probation,


                                          8
although not controlling, the sentencing court should use the following criteria: (1)

“the nature and [circumstances] of the criminal conduct involved,” Tenn. Code Ann.

§ 40-35-210(b)(4); (2) the defendant’s potential or lack of potential for rehabilitation,

Tenn. Code Ann. § 40-35-103(5); (3) whether a sentence of full probation would

unduly depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-

103(1)(B); and (4) whether a sentence other than full probation would provide an

effective deterrent to others likely to commit similar crimes, Tenn. Code Ann. § 40-

35-103(1)(B). See Bingham, 910 S.W.2d at 456. Denial of probation may be based

solely upon the circumstances of the offense when they are of such a nature as to

outweigh all other factors favoring probation. State v. Fletcher, 805 S.W.2d 785,

788-89 (Tenn. Crim. App. 1991).



       Here, the State argues these offenses are serious due to the violence

directed toward police officers attempting to diffuse a domestic dispute.

Additionally, the State avers that jail time will prevent depreciating the seriousness

of the offenses. In considering the denial of an alternative sentence based upon the

seriousness of the offense, this court held, “the circumstances of the offense as

committed must be especially violent, horrifying, shocking, reprehensible, offensive,

or otherwise of an excessive or exaggerated degree.” Bingham, 910 S.W.2d at 454

(citing State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).

Furthermore, the nature of the offense must outweigh all factors favoring a sentence

other than confinement. Bingham, 910 S.W.2d at 454. In this case, we are unable

to conclude that the circumstances of these offenses meet the standard set forth in

Bingham and Hartley.



       At the sentencing hearing, the appellant maintained his innocence in that his

anger was justified considering the mistreatment of his parents. He stated that the

officers were giving his father a “hard time” and “six stitches later and $3000 dollars

to Billy Brown [his attorney] here we are.” The trial court was of the opinion that the


                                          9
appellant had not taken the responsibility for his actions. The State argues that lack

of repentance and remorse are appropriate factors to consider in denying probation.

State v. Pierson, 678 S.W.2d 905 (Tenn. 1984). We agree with the court denying

the appellant probation based upon his lack of remorse.



       However, upon de novo review, we conclude that, based upon the

circumstances presented in the case sub judice, modification of the appellant’s

sentence is necessary. In misdemeanor sentencing, although the defendant is not

entitled to the presumption of a minimum sentence, State v. Seaton, 914 S.W.2d

129, 135 (Tenn. Crim. App. 1995) (citations omitted), the sentencing court

determines what portion of the sentence must be served in confinement after which

the defendant is eligible for certain rehabilitative relief programs. See Tenn. Code

Ann. § 40-35-302(d) (1995 Supp.). In so determining, the court should consider

enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Tenn. Code Ann. § 40-35-302(d); State v. Palmer ,

902 S.W.2d 391, 393-94 (Tenn. 1995); State v. Gilboy, 857 S.W.2d 884, 889

(Tenn. Crim. App. 1993). However, the statutory enhancement and mitigating

factors do not have to be the only factors considered by the trial court in determining

the appropriate sentence. The court should examine the misdemeanor offense in

the light and character of the circumstances of the offense. State v. Brannon, No.

03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3, 1996), perm. to

appeal denied , (Tenn. Nov. 4, 1996) (citing Gilboy, 857 S.W.2d at 889).



       Accordingly, we conclude that the following mitigating factors apply to the

appellant’s convictions for disorderly conduct and the resulting resisting arrest: (1)

“the defendant acted under strong provocation,” Tenn. Code Ann. § 40-35-113(2)

(1990); (2) “[s]ubstantial grounds exist tending to excuse or justify the defendant’s

criminal conduct, though failing to establish a defense,” Tenn. Code Ann. § 40-35-

113(3); and (3) “the defendant, although guilty of the crime, committed the offense


                                         10
under such unusual circumstances that it is unlikely that a sustained intent to violate

the law motivated his conduct,” Tenn. Code Ann. § 40-35-113(11). Further, we find

that the appellant exhibits a stable work record, although presently unable to work

because of recent back surgery, thereby providing familial support for his wife and

daughter, Tenn. Code Ann. § 40-35-113(13).       We conclude only one enhancing

factor applies to the appellant. The presentence report includes one prior conviction

for simple assault, however, we give this factor little weight because it is a Class A

misdemeanor which occurred over ten years ago. See Tenn. Code Ann. § 40-35-

114(1) (1995 Supp.).

       Although we do not minimize the gravity of the officers’ situation in diffusing a

domestic dispute, based upon the enhancing and mitigating factors, the appellant’s

sentence for the offense of resisting arrest is modified to reflect a sentence of six

months with thirty (30) days to be served in the county jail. This sentence is to run

concurrently with the appellant’s Class C misdemeanor convictions for disorderly

conduct and public intoxication. The judgment of the trial court in all other respects

is affirmed.



       This case is remanded for entry of judgment consistent with this opinion.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



____________________________________
JOHN H. PEAY, Judge




                                         11
____________________________________
JOSEPH M. TIPTON, Judge




                               12
