     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT   KNOXVILLE                FILED
                        DECEMBER 1994 SESSION            September 9, 1996

                                                         Cecil Crowson, Jr.
                                                         Appellate Court Clerk




                                 D
                                 5
STATE OF TENNESSEE,              5
            Appellee             5       No. 03C01-9409-CR-00314
                                 5
      vs.                        K       GREENE COUNTY
                                 5
                                 5       Hon. James E. Beckner, Judge
KERRY A. COMBS,                  5
            Appellant            5       (DUI)
                                 E




FOR THE APPELLANT:                           FOR THE APPELLEE:

Joyce M. Ward                                Charles W. Burson
Assistant Public Defender                    Attorney General & Reporter
Third Judicial District
1609 College Park Drive                      Cyril V. Fraser
Box 11                                       Assistant Attorney General
Morristown, TN 37813-1618                    Criminal Justice Division
(AT TRIAL & OF COUNSEL ON                    450 James Robertson Parkway
APPEAL)                                      Nashville, TN 37243-0493

Thomas T. Woodall                            C. Berkeley Bell
203 Murrell Street                           District Attorney General
P.O. Box 1075
Dickson, TN 37056-1075                       Cecil C. Mills
(ON APPEAL)                                  Asst Dist. Attorney General
                                             113 West Church Street
                                             Greeneville,TN. 37743




OPINION FILED: _______________________




CONVICTION AFFIRMED, REMANDED FOR RESENTENCING
Robert E. Burch
Special Judge




                                     1
                               OPINION

     The appellant was convicted by a jury of the criminal

offense of driving a motor vehicle while intoxicated (third

offense) and driving without a license.   On the DUI, the trial

court sentenced the appellant to eleven months, twenty-nine days

in the county jail; set his release eligibility at fifty per-

cent; fined him one thousand ten dollars and denied alternative

sentencing.    The sentence for driving without a license was

thirty days in the county jail and a fine of forty dollars.     Both

sentences were ordered served concurrently.

     Appellant presents three issues for review by this court:

          1). The sufficiency of the evidence;

          2). Whether a sua sponte comment by the trial court

improperly prejudiced appellant’s right to a fair trial; and

          3). The propriety of the sentence.

                                FACTS

     In the early morning hours of November 28, 1993, appellant

received a telephone call from a friend who was at a local bar.

The friend stated that he had consumed too much alcohol to drive

safely and requested appellant to pick him up and take him home.

     Appellant did so and was in the process of taking his friend

home when an officer of the Greeneville Police Department noticed

appellant make an unusually wide turn at an intersection.    The

officer followed appellant and, at the proper time, activated his

blue lights.   Appellant passed several appropriate places to stop

his vehicle but finally stopped after traveling about three or

four tenths of a mile.

     When stopped and questioned, appellant admitted that he did

not have a driver's license.    The officer noticed the smell of an

intoxicating beverage emanating from the vehicle and requested

appellant to get out of the car and talk to him outside.    This

was done and the officer smelled the odor of an intoxicant on

                                  2
appellant's breath.    Upon inquiry, appellant told the officer

that he had consumed three beers.     Thereupon, the officer

administered a battery of three field sobriety tests.     In the

opinion of the officer, appellant passed one test (heel-to-toe);

barely failed one (horizontal gaze and nystagmus) and failed one

outright (one-leg stand).   No other evidence of intoxication was

introduced.

     Appellant refused a breath alcohol test, demanding instead a

blood test.   It was during the testimony concerning the blood

test request that the trial judge sua sponte made the remark that

appellant was not entitled to a blood test.

     Appellant introduced considerable evidence contrary to the

facts set out above. For example, he insisted that he had

consumed no alcohol at all and had performed the field sobriety

tests satisfactorily, with any poor performance being readily

explained by the inclement weather and the poor condition of the

roadway upon which the tests were administered.     His testimony

concerning his alcohol consumption (or lack thereof) was

corroborated by his passenger and by his live-in girlfriend.

                        Sufficiency of Proof

     A guilty verdict from the jury, approved by the trial judge,

accredits the testimony of the State's witnesses and resolves all

conflicts in favor of the State. State v. Hatchett 560 S.W.2d 627

(Tenn. 1978). In reviewing the sufficiency of the proof, we must

accept the State’s version of the facts and discount the

appellant’s version.

      Where the sufficiency of the evidence is challenged, the

relevant question for an appellate 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.     State

v. Williams 657 S.W.2d 405 (Tenn. 1983).

     On appeal the State is entitled to the strongest legitimate

                                  3
view of the evidence and all reasonable or legitimate inferences

which may be drawn therefrom. State v. Cabbage 571 S.W.2d 832

(Tenn. 1978). A verdict against a defendant removes the

presumption of innocence and raises a presumption of guilt on

appeal, which the appellant has the burden of overcoming. State v

Grace 493 S.W.2d 474 (Tenn. 1973).

     At the trial, the State offered evidence which, if believed,

would establish that appellant:

            1). Was driving erratically;

            2). Had the odor of an alcoholic beverage about his

person;

            3). Admitted drinking three beers; and

            4). Performed unsatisfactorily on two of three field

sobriety tests.

     Appellant offered evidence which, if believed, would have

established that all four of the above points were untrue and

that he had had nothing at all to drink that night.

     The resolution of this factual dispute was a classic jury

question.   The jury resolved the issue in favor of the State.     We

do not reweigh or re-evaluate the evidence. State v Cabbage,

supra.    The jury obviously found the officer’s version to be

credible and rejected appellant’s version. We will not disturb

that finding.   Appellant has not convinced us that a rational

trier of fact could not have found the essential elements of the

offense beyond a reasonable doubt.    Jackson v. Virginia 443 U.S.

307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).   The issue is without

merit.

                          Judicial Comment

     At the beginning of cross-examination of the arresting

officer, appellant’s able counsel attempted to elicit the fact

that, although appellant had refused a breath alcohol test, he

did request a blood test to determine the level of alcohol in his



                                  4
blood.   The trial judge interjected that appellant was not

entitled to such a test.   No contemporaneous objection was made

by appellant.

     Since appellant had refused the breath alcohol test offered

to him, he had no right to a blood test. State v Choate 667 S.W.

2d 111 (Tenn. Crim. App. 1983).   The trial judge’s statement was

correct.

     The trial court has the discretion to sua sponte limit

testimony that is irrelevant. State v James Frederick Helton

(unreported) Court of Criminal Appeals at Knoxville #03C01-9406-

CR-00220 filed November 22, 1995.     This action by the trial judge

did not indicate any opinion for or against the appellant, it

simply was an attempt to redirect the focus of the questioning.

The comment was not error. State v Harris 839 S.W.2d 54 (Tenn.

1992).

                            Sentencing

     Misdemeanor sentencing is controlled by T.C.A. §40-35-302,

which provides in part that the trial court shall impose a

sentence consistent with the purposes and principles of the 1989

Criminal Sentencing Reform Act. In determining the correct

sentence, the trial court should examine the case in the light of

the nature and character of the offense. State v. Gilboy 857

S.W.2d 884(Tenn. Crim. App. 1993). Among the factors applicable

to the Defendant's application for probation are the

circumstances of the offense, his criminal record, social history

and present condition, and the deterrent effect upon and best

interest of the Defendant and the public. State v. Gennoe 851

S.W.2d 833(Tenn. Crim. App. 1992).

     Misdemeanor sentencing is designed to provide the trial

court with continuing jurisdiction and a great deal of

flexibility. The trial court retains the authority to place the

Defendant on probation either immediately or after a time of



                                  5
periodic or continuous confinement. T.C.A. § 40-35-302(e).

Because especially mitigated or standard offenders convicted of

Class C, D, or E felonies are presumed to be favorable candidates

for alternative sentencing, the same presumption would logically

apply to misdemeanors. Gennoe 851 S.W.2d at 837; see T.C.A. §

40-35-102(6). However, the misdemeanant, unlike the felon, is not

entitled to the presumption of a minimum sentence. State v.

Creasy 885 S.W.2d 829(Tenn. Crim. App.1994).   Additionally, the

burden of establishing suitability for probation rests with the

Defendant. T.C.A. § 40-35-303(b).

     We review the trial court’s sentence de novo with a general

presumption of correctness if the record demonstrates that the

trial court properly considered relevant sentencing principles.

State v Ashby 823 S.W.2d 166 (Tenn.1991); T.C.A.§40-35-401(d).

     In setting the sentence at the maximum for the offense, we

do not find that the trial judge departed from the requirements

of Ashby.   This is especially true since T.C.A.§55-10-403(c), in

effect, mandates a maximum sentence for DUI, 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.

     In determining whether alternatives to incarceration were

appropriate, we are of the opinion that the trial judge erred.

     The trial court refused to suspend any portion of

appellant’s sentence based upon three factors, which the trial

judge stated on the record:

            1). Appellant’s prior history of alcohol abuse evinced

by his two prior convictions for DUI;

            2). General deterrence of those in Greene County

inclined to violate this law; and

            3). The circumstances of the offense, to wit: the

reckless driving of the appellant.

     None of these factors would support the denial of a

                                  6
suspended sentence.

     The first factor is, in reality, the fact that appellant has

two prior DUI convictions.    Nothing more than the fact of the

convictions was entered into the record to establish his prior

history of alcohol abuse.    There is nothing in the record from

which the trial court could have found that appellant ever

consumed alcohol in his entire life prior to this incident on

trial except upon those two occasions, once in 1986 and once in

January of 1991. Counting the present case, appellant has had

three DUIs in seven years.    While this is an obvious repeated and

serious violation of the law, it hardly establishes an alcohol

problem which could be used to incarcerate appellant for more

than the statutory minimum.   This is particularly true when these

same facts are used to establish an element of the offense for

which appellant was convicted (third offense DUI).   The General

Assembly has established a mandatory minimum period of

incarceration for just these facts and, no other facts appearing,

increasing that period would encroach upon the legislative

prerogative.

     Before a trial court may deny probation on the ground of

deterrence, there must be some evidence in the record that the

sentence imposed will have a deterrent effect within the

jurisdiction. State v Horne 612 S.W.2d 186 (Tenn. Crim. App.

1980).    In addition, the Tennessee Criminal Sentencing Reform Act

of 1989 requires that any sentence imposed by a court must be

based on evidence contained in the record of the trial and

sentencing hearing or the presentence report. T.C.A. §40-35-

210(d).   A finding that appellant’s sentence will have a

deterrent effect cannot be merely conclusory only but must be

supported by proof. State v. Smith 735 S.W.2d 859 (Tenn. Crim.

App. 1987).

     The record is devoid of any proof of deterrence.    The

reliance upon this factor was error.

                                  7
     Lastly, the trial court relied upon the circumstances of the

offense to deny probation.

     The trial court may, of course, deny probation based upon

the circumstances of the offense. State v Hartley 818 S.W.2d 374

(Tenn. Crim. App 1991).   In order to do so based solely upon that

factor, however, the circumstances of the offense as committed

must be especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or exaggerated degree and

the nature of the offense must outweigh all factors favoring

probation. supra.

     The facts in the record do not support such a finding.

     It follows, then, that the trial court erred in denying

appellant suspension of some portion of his sentence.

     If there were no factors in the record which would support

incarceration above the minimum established by the statute, we

would modify the sentence to grant probation after service of

said period.   The record, however, does contain factors which the

trial judge may chose to consider in determining whether to

require a longer period of incarceration, e.g. the untruthfulness

of the appellant in denying that he had consumed alcohol.   This

being the case, it is the trial court, not an appellate court,

which should make that determination.

     The judgment of conviction and length of sentence is

affirmed and the case is remanded to the trial court to determine

the amount of appellant’s sentence which should be served on

probation.



                                         _________________________
                                              Robert E. Burch,
                                              Special Judge


CONCUR:
_________________________
 Gary R. Wade, Judge



                                 8
_________________________
 Joseph M. Tipton, Judge




                            9
