         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 24, 2003

                     STATE OF TENNESSEE v. JANICE HALL

                  Direct Appeal from the Criminal Court for White County
                           No. CR1037     Leon Burns, Jr., Judge



                        No. M2002-02320-CCA-R3-CD - July 24, 2003


After a bench trial, the Defendant, Janice Hall, was convicted of two counts of vandalism under five
hundred dollars, a Class A misdemeanor. The trial judge sentenced her to concurrent terms of eleven
months and twenty-nine days, with thirty-five days to serve in confinement. In this direct appeal,
the Defendant argues that the evidence was insufficient to support her convictions and that the trial
judge erred by ordering her to serve thirty-five days in confinement. We affirm the judgments of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.

Joe L. Finley, Jr., Cookeville, Tennessee, for the appellant, Janice Hall.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Bill
Gibson, District Attorney General; and William M. Locke, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                            OPINION


        Tammy Blanton testified at the Defendant’s trial that her husband and the Defendant had a
son together. In December of 2001, Ms. Blanton and her husband were involved in a custody dispute
with the Defendant. At about 5:45 p.m. on December 17, 2001, Ms. Blanton and her three daughters
went to the home of her mother-in-law, Debbie Young. Ms. Blanton parked her car in the driveway
behind Ms. Young’s vehicle. Approximately five to eight minutes after she and her daughters
arrived at Ms. Young’s house, Ms. Blanton “heard a sound that went psst, like that - a big air sound
or something.” Immediately thereafter, Ms. Blanton saw the Defendant go by the window of the
house. Ms. Blanton testified that there was no doubt in her mind that the person she saw outside the
window was the Defendant. When Ms. Blanton and Ms. Young went outside, they discovered that
all four tires on Ms. Young’s vehicle and all four tires on Ms. Blanton’s vehicle were flat. Ms.
Blanton testified that “[t]hey had been stabbed and cut.” Ms. Blanton stated that she replaced the
tires, and they were valued at two-hundred fifty dollars.

        On cross-examination, Ms. Blanton stated that, at the time her tires were slashed, it was dark
outside. However, the porch light was turned on, and light from Ms. Young’s kitchen and living
room also shone outside. On redirect, Ms. Blanton stated that she and her husband were supposed
to be in court for the custody proceeding on the day after her tires were damaged.

         Debbie Young, Ms. Blanton’s mother-in-law and grandmother of the Defendant’s son,
testified that Ms. Blanton and her three daughters came to her house on December 17, 2001. Ms.
Blanton parked her car in Ms. Young’s driveway, which was lit by a porch light and a street light.
Ms. Young stated that Ms. Blanton arrived at approximately 5:45 p.m. About five minutes after Ms.
Blanton arrived, Ms. Young was sitting with her back to the window, and Ms. Blanton asked her
whether she heard something. Ms. Young was having difficulty hearing that night due to a head
cold. Then Ms. Blanton said, “Well, there goes Janice.” By the time Ms. Young got outside, she
saw a person running through a field. However, it was “pitch black,” and Ms. Young could not
identify the person who was running through the field. Ms. Young testified that the tires on her car
and Ms. Blanton’s car had been cut. She estimated the value of her tires to be two-hundred fifty
dollars.

         Ms. Young also testified that her grandson, the Defendant’s son, was in foster care. She, Ms.
Blanton and Ms. Blanton’s husband were trying to remove him from foster care. The Defendant was
upset about that and was attempting to prevent them from obtaining custody of the child. Ms. Young
testified that they were scheduled to appear in court on December 18, 2001, regarding the custody
dispute.

        Brittany Mott, Ms. Blanton’s twelve-year-old daughter, testified that she, Ms. Blanton, and
her twin sisters went to Ms. Young’s house on December 17, 2001. After they had been at Ms.
Young’s house a short time, she heard “a psst sound.” She turned around and saw the Defendant
running from Ms. Young’s vehicle to the back of the house. Although it was dark outside, Ms. Mott
testified that she was positive that the person she saw running was the Defendant because of “her
hair and stuff.” When she went outside, Ms. Mott noticed that the tires on both vehicles were flat.

        Earlene Betterton testified on the Defendant’s behalf. She stated that she was working as an
R.N. during December of 2001. On December 17, 2001, she got up at about 5:30 in the afternoon
in order to be at work at 7:00 p.m. She testified that she had dinner with the Defendant, who was
at her house from the time she got up at 5:30 p.m. until she left for work at 6:30 p.m.

        On cross-examination, Ms. Betterton stated that she had known the Defendant since the
Defendant was twelve years old. She testified that the Defendant referred to her and her husband
as “her adopted mom and dad.” The Defendant stayed in Ms. Betterton’s home for short periods of
time, and she was staying there during December of 2001.


                                                 -2-
        Ms. Betterton stated that she remembered the date of December 17, 2001, because it was the
day before the Defendant’s birthday. She also testified that she became aware on December 18 that
the Defendant had been charged with vandalism. She said that she thought the Defendant had
learned of the charges when she went to court on December 18 for the custody hearing. When the
prosecutor asked whether she could explain how she knew about the charges against the Defendant
on December 18 when the Defendant was not arrested until December 27, Ms. Betterton admitted
that she did not know when the Defendant was “picked up” by the police.

        The Defendant’s first argument is that the evidence was not sufficient to support her two
convictions for vandalism. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence
is sufficient if, after reviewing 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.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000).
In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs,
995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. 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, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        Tennessee Code Annotated section 39-14-408(a) provides that “[a]ny person who knowingly
causes damage to or the destruction of any real or personal property of another… knowing that the
person does not have the owner’s effective consent is guilty of an offense under this section.” Ms.
Blanton and Ms. Mott testified that, a few minutes after they arrived at Ms. Young’s house, they
heard a “psst” sound. They both also testified that they saw the Defendant shortly after they heard
this sound. Ms. Young also saw someone running away, although she could not identify the person.
All three of the State’s witnesses testified that, when they went outside, they discovered that the tires
on the vehicles belonging to Ms. Blanton and Ms. Young were cut and flat. Ms. Blanton and Ms.
Young each had to replace all the tires on their respective vehicles.




                                                   -3-
         The Defendant urges us to find that this evidence is insufficient to support her convictions
because of the testimony of Ms. Betterton, who testified that, at the time the offenses were alleged
to have occurred, the Defendant was at her house eating dinner. The Defendant characterizes Ms.
Betterton as “believable.” In contrast, the Defendant points out that the State’s witnesses were “very
interested” in the outcome of the case. In support of this description, the Defendant emphasizes that
the tires that were slashed belonged to Ms. Blanton and Ms. Young, the custody battle between Ms.
Blanton and her husband and the Defendant, and the animosity between Ms. Blanton and the
Defendant.


         Quite simply, the Defendant asks us to declare the evidence insufficient because the defense
witness was more credible than the State’s witnesses. Obviously, the trial judge, by finding the
Defendant guilty of two counts of vandalism, accredited the testimony of the State’s witnesses.1 We
reiterate that the trial court, not this Court, resolves all issues regarding the credibility of witnesses.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987). Based on the testimony of Ms. Blanton, Ms. Young, and Ms. Mott, the trial judge
as the trier of fact clearly could have found beyond a reasonable doubt that the Defendant slashed
the tires of Ms. Blanton and Ms. Young and thereby committed two acts of vandalism. Therefore,
this issue is without merit.


        The Defendant’s second argument on appeal is that the trial court erred by ordering her to
serve thirty-five days in confinement. In support of her argument, she cites Tennessee Code
Annotated section 40-35-103(4), which states that “[t]he sentence imposed should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed,” and Tennessee Code
Annotated section 40-35-103(6), which states that “[t]rial judges are encouraged to use alternatives
to incarceration that include requirements of reparation, victim compensation and/or community
service.”


       The Defendant was convicted of two counts of vandalism of property valued at under five-
hundred dollars. Because acts of vandalism are punished as theft, see Tenn. Code Ann. § 39-14-
408(c)(1), the Defendant was convicted of two counts of a Class A misdemeanor, see Tenn. Code

        1
         The trial court stated,
                  On the other hand, we have what would appear to be an honest and disinterested party who
        would p rovide an alibi that it wasn’t Ms. Hall. So it’s a situation then of who you believe I guess.
                  Based upon what Ms. Betterton was indicating, that she was pretty positive, but at the same
        time a good many of her things are information that comes from Janice Hall, and I’m of the opinion
        that there is a likelihood that there’s some confusion about the date and times in Ms. Betterton’s
        testimony.
                  The record reflects that the warrant may have been taken o n the 18th but it wasn’t served till
        the 27th. It seems to me strange that M s. Hall would have b een in court on the 18th for her child
        custody matter, whatever that was, and be told about the warrant but not been arrested on the warrant.
        And so, at any rate, I feel as tho ugh the potential con fusion in the testimo ny of M s. Betterton would
        justify the Court finding that she is guilty of the offense of vandalism….

                                                          -4-
Ann. § 39-14-105(1). 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 Tenn. Code Ann. §
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, unlike one convicted of a felony, 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. See Tenn. Code Ann. § 40-35-302(a). The trial court retains the
authority to place the defendant on probation either immediately or after a time of periodic or
continuous confinement. See id. § 40-35-302(e).


        Our supreme court has held that, although the better practice is for a trial court to make
findings on the record when fixing a percentage of a defendant’s sentence to be served in
confinement, such findings are not required. See Troutman, 979 S.W.2d at 274. A trial court does
need to “consider” the principles of sentencing and enhancement and mitigating factors when
sentencing a misdemeanant. See id. In sentencing the Defendant in this case, the trial court did not
place on the record its findings concerning the application of enhancement and mitigating factors or
the sentencing principles.



        The record before us reflects that the Defendant was on pre-trial diversion at the time the
instant offenses were committed. Because the Defendant did not testify at trial, and because there
is no presentence report, the record contains almost no other information concerning the Defendant.
The trial judge ordered her sentence to be served in split-confinement, and the Defendant argues on
appeal that the judge should have ordered total probation. We note that the burden of proving
suitability for total probation rests with the Defendant. See Tenn. Code Ann. § 40-35-303(b). Based
on the record before us, we are unable to conclude that the trial judge erred or abused his discretion
in ordering that a portion of the sentence be served in confinement.


       The judgments of the trial court are affirmed.


                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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