        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 4, 2011

       STATE OF TENNESSEE v. WALTER THOMAS GODSEY, JR.

               Direct Appeal from the Circuit Court for Chester County
                       No. 10-CR-29     Donald H. Allen, Judge


              No. W2011-01027-CCA-R3-CD - Filed December 29, 2011


The defendant, Walter Thomas Godsey, Jr., was convicted by a Chester County Circuit
Court jury of driving on a cancelled, suspended, or revoked license, a Class B misdemeanor,
and sentenced to six months in the county jail. On appeal, he challenges the sufficiency of
the convicting evidence and the sentence imposed by the trial court. After review, we affirm
the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., J., joined.

George Morton Googe, District Public Defender; and Kandi Kelley Collins, Assistant Public
Defender, for the appellant, Walter Thomas Godsey, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

        The defendant was indicted for driving on a cancelled, suspended, or revoked license
after a police officer pulled him over on suspicion he had unrestrained children in his
vehicle. At trial, Trooper Jimmy Plunk, with the Tennessee Highway Patrol, testified that
he was traveling north on State Route 22 in Chester County on September 6, 2009, when he
observed a red Corsica with unrestrained child passengers traveling south on the same road.
In his rearview mirror, Trooper Plunk saw the car turn onto Willis Road, so he turned around
and caught up to the vehicle on Willis Road at the intersection with Lancaster Road.
According to Trooper Plunk, the defendant appeared to have missed a turn and was backing
up at the intersection. At the same time, the defendant was “leaning down towards the
driver’s door.”

       Trooper Plunk testified that he activated his lights and siren, after which the
defendant stopped his car, exited the vehicle, and began walking toward him with something
in his right hand. Concerned that the defendant might have a weapon, Trooper Plunk
ordered the defendant to drop whatever was in his hand and get on the ground. The
defendant complied, and Trooper Plunk determined that the defendant did not have a
weapon. Trooper Plunk observed that there were two adults and five juveniles in the car.

      Trooper Plunk obtained the defendant’s driver’s license and checked it through the
Tennessee Highway Patrol dispatch. He learned that the defendant’s license was suspended,
which was a violation of the law. He believed that the defendant told him that he was not
aware that his license was suspended.

        Trooper Plunk testified that he later requested a certified copy of the defendant’s
driving record from the Department of Safety. The records showed that the defendant’s
license had been suspended several times in the past and was last suspended in 2007 for
failure to satisfy citations. It was suspended for an indefinite period of time and, thus, was
in suspended status on September 6, 2009.

       Trooper Plunk testified that he determined that the vehicle the defendant had been
driving was registered to one of the passengers in the car. However, her license was also
suspended so she could not drive the car from the scene. Trooper Plunk stated that he could
have cited the defendant instead of arresting him, but he made the decision to arrest the
defendant because of his driving history.

       The defendant testified that he was not attempting to evade Trooper Plunk but had
missed his turn and was backing up when he saw the trooper’s blue lights behind him. He
said that Trooper Plunk took him into custody and transported him to the jail. He stated that
Patty Gilmore was with him in the car but that she could not drive the car home from the
scene because her license had also been suspended. The car was registered to Patty
Gilmore’s ex-husband, Alton Gilmore.

       The defendant acknowledged that he was in fact driving when Trooper Plunk pulled
him over but said that he did not know his license was suspended. He explained that his
license had originally been suspended over a ticket in Chester County. He said that he had
paid the ticket, showed proof of insurance, and received his license back. The defendant

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claimed that he had paperwork to show that he had paid his reinstatement fees in order to
get his license back, and he believed his license was reinstated on October 10, 2006.
However, his license was evidently re-suspended in 2007 over the same ticket “for an
insurance,” of which he was not aware when he was pulled over. He maintained that he did
not “knowingly” drive on a suspended license.

       The defendant testified that he still did not have a driver’s license. In order to get his
license back, he had to show proof of insurance in Chester County and pay for a ticket in
Selmer. He said that he had paid for the Selmer ticket but “ha[d] not carried it to reinstate
on them yet.” He thought that he received the ticket in Selmer prior to his arrest in this case.
He explained that he got the ticket in Selmer because he was driving someone else’s car and
that person did not have insurance on the vehicle. He thought that the owner of the car had
paid for the ticket, but he had not so the defendant paid for it.

       The defendant stated that he could not have his license reinstated until he got
“everything cleared up,” which also included paying a $300 reinstatement fee. He could not
presently afford to pay the reinstatement fee or afford insurance. He acknowledged that his
license had been suspended several times in the past and that he was aware of the process
for getting it reinstated.

       After the conclusion of the proof, the jury convicted the defendant of driving on a
cancelled, suspended, or revoked license.

                                          ANALYSIS

                               I. Sufficiency of the Evidence

        The defendant challenges the sufficiency of the convicting evidence, arguing that, at
the time of the stop, he did not know that his license had been suspended. When the
sufficiency of the convicting evidence is challenged, the relevant question of the reviewing
court 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 (1979); see also Tenn. R. App.
P. 13(e) (“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 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. See State v. Pappas, 754

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S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

        “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).

       Tennessee Code Annotated section 55-50-504(a)(1) provides:

              A person who drives a motor vehicle within the entire width between
       the boundary lines of every way publicly maintained that is open to the use of
       the public for purposes of vehicular travel, or the premises of any shopping
       center, manufactured housing complex or apartment house complex or any
       other premises frequented by the public at large at a time when the person’s
       privilege to do so is cancelled, suspended, or revoked commits a Class B
       misdemeanor.

        In the light most favorable to the State, the evidence shows that Trooper Plunk
stopped the defendant on September 6, 2009, based on the suspicion the defendant had
unrestrained child passengers in his vehicle. Trooper Plunk contacted the Tennessee
Highway Patrol dispatch and learned that the defendant’s driver’s license was suspended.
He later obtained a certified copy of the defendant’s driving history from the Department of
Safety and confirmed that the defendant’s license had been suspended indefinitely in 2007
for failure to satisfy citations. Therefore, the defendant’s license was suspended on the day
of the stop.


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       The defendant does not deny that he was driving on September 6, 2009, or that his
license was in fact suspended at the time. He only argues that he did not know that his
license was suspended. However, this court has previously held that the offense of driving
on a cancelled, suspended, or revoked license does not require any culpable mental state.
This same argument has previously has been made to and rejected by this court. See State
v. Richard Ferrell, No. M2009-01175-CCA-R3-CD, 2010 WL 27886, at *3 (Tenn. Crim.
App. Jan. 7, 2010) (Tenn. Code Ann. § 39-11-301(b), setting out when proof of a culpable
mental state is required, applies to Title 39 of the Code and not to Title 55, which sets out the
proscription against driving on a revoked license), perm. to appeal denied (Tenn. May 20,
2010). Accordingly, this argument is without merit.

                                        II. Sentencing

       The defendant argues that the trial court imposed an excessive sentence in that the
court denied his request for an alternative sentence and ordered that he serve his six-month
sentence in jail.

        The trial court conducted a sentencing hearing, at which the State relied on a certified
copy of the defendant’s driving history. The fifty-one-year-old defendant testified that he
lived in McNairy County and was trying to start an auto repair business from his home. He
said that he needed to work from home because his wife suffered from seizures and that they
had a three-year-old child at home. His wife received a disability check, which was their
family’s sole source of support aside from his occasional auto repair work. He said he had
not had a full-time job since being released from prison fifteen or twenty years earlier,
claiming that no one would hire him.

        The defendant elaborated that he received a fifteen-year sentence in Mississippi in
1979 or 1980, when he was twenty or twenty-one years old, after he pled guilty to accessory
after the fact to kidnapping and murder. While on parole for the Mississippi offense, he was
arrested in Tennessee for auto theft for which he served a five-year sentence. He explained
that his uncle had told him he could use a vehicle but then had reported it stolen. He said
that he had not had any “run-ins with the law” since then aside from traffic or driving
offenses. He acknowledged that his license had been suspended numerous times in the past,
but he thought his license was valid the day he was arrested.

       The defendant testified that he would be a good probationer if the court granted him
probation and that he was throwing himself at the mercy of the court. He said that he would
report as scheduled and would do the best he could to pay any fines. He stated that he did
not have a drug or alcohol problem.


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        In sentencing the defendant, the trial court considered the circumstances of the
offense and noted that the defendant admitted he was driving that day and that the proof was
overwhelming that his license was suspended. The court observed that the defendant’s
license had been suspended and revoked “numerous times out of numerous counties” and
that “his driving history’s not good.” The court stated that the defendant had multiple traffic
infractions for which he failed to pay the citations and show proof of insurance. The court
noted that the defendant had a “total disregard for the traffic laws of this state.”

       The trial court gave great weight to the defendant’s prior convictions, stating that the
defendant had a conviction in 1997 for driving on a revoked license as well as two prior
serious felony convictions. The court noted that the defendant committed one of the felonies
while on parole for the other. The court also noted that the defendant had not “had a regular
job” since 1989 or 1990 and had not “really put forth an effort to hold a job.” The court
determined, considering the defendant’s prior criminal record and “extensive driving
history” that the proper sentence was six months in the county jail at 75% release eligibility.
The court found that the defendant was not an appropriate candidate for probation due to his
extensive criminal history.

       Appellate review of misdemeanor sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. §§ 40-35-
401(d), -402(d). This presumption of correctness is conditioned upon the affirmative
showing that the trial court considered the relevant facts, circumstances, and sentencing
principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the
appealing party to show that the sentence is improper. See Tenn. Code Ann. § 40-35-
401(d), Sentencing Commission Cmts.

       The trial court is afforded considerable latitude in misdemeanor sentencing. See, e.g.,
State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). When imposing a
misdemeanor sentence, the trial court is not required to conduct a sentencing hearing, but
it must afford the parties a reasonable opportunity to address the length and manner of
service of the sentence. Tenn. Code Ann. § 40-35-302(a). Moreover, the trial court is not
required to place specific findings on the record, State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998), but must consider the principles of sentencing and the appropriate
enhancement and mitigating factors in determining the percentage of the sentence to be
served in actual confinement. Tenn. Code Ann. § 40-35-302(d). The trial court is
authorized to place the misdemeanant on probation either immediately or after a term of
confinement. Id. § 40-35-302(e).

      A trial court may deny alternative sentencing and sentence a defendant to
confinement based on any one of the following considerations:

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       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1).

       The defendant has failed to show that the sentence imposed by the trial court is
improper. The trial court reached its sentencing conclusion based on the defendant’s prior
history of criminal conduct. The defendant’s driving record details numerous prior driving
infractions, and he admitted that he had two prior felony convictions – one of which he
committed while on parole for the other. Upon our review, we cannot conclude that the trial
court exceeded the great flexibility and discretion extended to trial courts in fashioning a
misdemeanor sentence.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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