         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 5, 2003

                 STATE OF TENNESSEE v. RICHARD DILLING

                   Direct Appeal from the Circuit Court for Obion County
                          No. 2-275   William B. Acree, Jr., Judge



                  No. W2002-02547-CCA-R3-CD - Filed November 24, 2003


Following a bench trial in the Circuit Court of Obion County, Defendant, Richard Dilling, was
convicted of misdemeanor reckless endangerment. He was sentenced to serve 11 months and 29
days, with all but 30 days to be suspended. He now appeals, challenging both the sufficiency of the
evidence to sustain the conviction and the sentence imposed by the trial court. After a careful review
of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

Didi Christie, Brownsville, Tennessee, (on appeal); Joseph P. Atnip, District Public Defender; and
William K. Randolph, Assistant Public Defender, (at trial) for the appellant, Richard Dilling.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin Alpin, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

        On the afternoon of July 20, 2002, Defendant was at the home of his aunt, Sarah Ceiga,
located at the Homestead trailer park in Troy, Tennessee. Several other people were also present,
including family members. From the record it appears that there was some discord among the
members of the family during the immediately preceding 24 to 48 hours. One or more had been
taken to jail on unspecified criminal charges, and Ms. Ceiga had been required to arrange bail. Some
of those present had congregated at Ms. Ceiga’s home because they had been staying at the residence
of an individual who was incarcerated, and he had told them to leave. In any event, it is implied
from a review of the record that disharmony and disgust among the family members had caused
tempers to flare and patience was in short supply.
         Ms. Ceiga testified that she told those present in her home that they could stay, but “if they
started any stuff,” they would have to leave. Ms. Ceiga further stated that Defendant “started with
an attitude” and she asked him to leave several times. He would not leave. Ms. Ceiga’s husband,
David Ceiga, pushed Defendant out the door, but Defendant still would not leave, and kept “coming
back” at Ms. Ceiga’s husband. She called the police for assistance in forcing Defendant to leave.


         Officer Larry Farley and Chief James Cleek of the Troy Police Department responded shortly
after Ms. Ceiga’s call to the police. They arrived at the Ceiga residence at approximately 2:00 p.m.
Farley, Ms. Ceiga’s former son-in-law, arrived a few minutes before Chief Cleek. Farley confronted
Defendant at the scene and told Defendant that he had to leave. According to Farley, Defendant
stated that he did not want to leave, at least until he told his side of the story. Farley again told
Defendant to leave, and that he had no desire to hear Defendant’s story. Defendant became “a little
agitated” and got into his vehicle. According to Officer Farley, Defendant reversed the vehicle at
a high rate of speed, left the trailer park “slinging gravel,” ran a stop sign, and proceeded down
Highway 51 North at a high rate of speed. Chief Cleek and Farley immediately gave chase after
Defendant in their respective police cruisers, with Chief Cleek in the lead. Officer Farley testified
that at one point he was chasing Defendant at a speed in excess of 80 miles per hour.

       Prior to leaving the trailer park, Defendant’s friend’s six-year-old child had gotten in the
backseat of Defendant’s vehicle. Defendant testified that he placed the child inside the vehicle
before he left, but Farley and Cleek testified that they were unaware that the child was inside
Defendant’s vehicle until Defendant finally stopped his vehicle on Highway 51.

        Farley and Cleek testified that Defendant did not pull over in a normal fashion. Both cruisers
had their flashing lights and sirens turned on during the chase. Chief Cleek drove his vehicle even
with Defendant, on the passenger side of Defendant’s vehicle. According to Farley, Defendant then
swerved his vehicle toward Chief Cleek’s cruiser, causing Cleek’s vehicle to drive off the shoulder
of the road. Chief Cleek then passed Defendant, and he was driving in front of Defendant while
Farley was driving behind Defendant. Chief Cleek began to slow down to force Defendant to slow
down. Suddenly, Defendant “locked down” the brakes on his car, “slung” over to the right side of
the roadway, leaving skid marks on the road, and he stopped with his car sideways in the right side
of the road. Defendant was then arrested. Chief Cleek’s testimony was similar to Officer Farley’s
testimony, except Cleek did not mention that Defendant had swerved at his vehicle.

        Defendant testified that he initially went to the trailer next door to Ms. Ceiga’s trailer, to
speak with Elizabeth Neace. Neace left and went to the Ceiga residence, and told Defendant to “stay
put.” Defendant initially stayed, but then went to the Ceiga home and asked to speak with Ms.
Neace. Defendant stated that “one thing led to another” and that David Ceiga “assaulted me by
force, grabbed my arm, threw me against the trailer, pushed me down the stairs, knocked me down
in the gravel.”




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        Defendant testified that Cleek and Farley then arrived and told him to leave. He told them
that he did not mind leaving, but he wanted to tell his side of the story. Defendant said that Chief
Cleek told him twice that he had one minute to leave. Defendant put the child into the car and
backed out. Defendant claimed that he left two or three minutes before Chief Cleek and Officer
Farley left the trailer park. This contradicted the police officers’ testimony that they immediately
began chasing Defendant when he left.

       Defendant claimed that he did not see flashing lights or hear sirens. He said he did not know
he was being chased by police until Chief Cleek pulled directly in front of him, putting on his brakes,
forcing Defendant to slam on the brakes and swerve to the right, leaving skid marks on the road.

        Defendant claimed that he left the trailer park at 10 miles per hour, the posted speed limit.
He asserted that he drove no faster than 65 miles per hour down Highway 51 North prior to being
stopped by Cleek and Farley. Defendant testified that he has family members who reside at
Homestead trailer park, that he had visited there often, and that he had never seen a stop sign at the
exit he took from the trailer park.

        On cross-examination, Defendant stated that the officers’ sirens were never turned on, and
that he did not see the flashing lights because he was “looking at the child” in the back seat.
Defendant testified that Chief Cleek and Officer Farley lied when they testified that the sirens were
turned on. He also stated that Ms. Ceiga lied when she testified that she had told Defendant to leave
her residence. Defendant denied that he tried to run Chief Cleek off the road, that he had run a stop
sign, and that he had “slung” gravel when he left the trailer park.

        In announcing its verdict from the bench, the trial court found that Defendant’s testimony was
“totally impeached” during cross-examination by the prosecutor. The trial court specifically found
that Defendant backed out of the trailer park at a very high rate of speed while the young child was
with him. Also, the trial court found that Defendant ran the stop sign and proceeded on Highway
51 North at a very high rate of speed, with the police officers following behind him at speeds up to
80 miles per hour. The trial court found that it was necessary for the officers to “box in” Defendant
in order to try to get him to stop, and that Defendant then came to an “abrupt stop” in such a manner
as to endanger the officers as well as the child in the vehicle with Defendant.

                                            ANALYSIS

      I. Validity of Defendant’s Appeal to Circuit Court from General Sessions Court

        We must first address the State’s argument on appeal that the trial court lacked the
“authority” to determine Defendant’s guilt or innocence of reckless endangerment. The case came
before the Circuit Court of Obion County following Defendant’s appeal from the General Sessions
Court of that county, where the charge was initiated in an arrest warrant. Defendant was also
charged, as a result of this incident, and convicted in General Sessions Court, of resisting arrest and



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disorderly conduct. He appealed those convictions at the same time and the Circuit Court found him
not guilty of those two offenses following the trial.

        The State argues for the first time on appeal that Defendant pled guilty to all three offenses
in the General Sessions Court, and therefore could only appeal the sentences imposed. Tenn. R.
Crim. P. 5(c)(1); see State v. Winebarger, 70 S.W.3d 99, 100 (Tenn. Crim. App. 2001). The State
asserts that the three guilty pleas to reckless endangerment, resisting arrest, and disorderly conduct
should be reinstated.

        We initially note that the State did not advocate this legal argument in the Circuit Court of
Obion County. We also question whether the learned trial judge in this case would conduct a de
novo bench trial following guilty pleas in the General Sessions Court. The State, on appeal,
apparently relies upon the fact that on each of the three arrest warrants, the word “guilty” is circled
in the boiler-plate, pre-printed language under the heading “Request to have case tried in General
Sessions Court.” The pertinent language on each arrest warrant states that “[a]fter being fully
advised of my rights by the Judge I submit this case to the jurisdiction of the General Sessions Court,
and hereby plead ___ guilty to the offense of [reckless endangerment or Disorderly Conduct or
Resisting arrest/stop] . . . .”

        While the word “guilty” is circled, it is also important to note that each arrest warrant has pre-
printed language listing the litany of rights waived upon a plea of guilty. On this part of the arrest
warrant, the spaces for the signatures of Defendant, his attorney, and the General Sessions Judge are
blank. This strongly indicates that there were no guilty pleas in General Sessions Court.
Furthermore, there is reference to Officer Farley’s General Sessions Court testimony in Defendant’s
testimony during the Circuit Court trial. Finally, there is, in the transcript, a persuasive indication
that the trial court, the prosecutor, and the defense attorney were all aware that the appeals were from
convictions following a trial in the General Sessions Court. At the beginning of the trial in Circuit
Court there is the following colloquy:

                                     OPENING STATEMENTS

        [Prosecutor]:           I just want to make sure - - we’re here on, I believe, three
                                charges that were appealed, reckless endangerment, resisting
                                stop [sic], and disorderly conduct. Is that - -

        [Defense counsel]:      That’s correct.

        THE COURT:              Let’s see - - yeah, you’re correct.

        While the “judgment” portion of each arrest warrant does not clearly indicate that the fines
and sentences were imposed following a trial rather than guilty pleas, and the word “guilty” is circled
on a portion of the arrest warrant as indicated above, we are confident from our review of the entire
record that Defendant did in fact appeal to the Circuit Court the three convictions which resulted


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from a trial following pleas of “not guilty.” The State is not entitled to the relief it seeks on this
issue.

                                  II. Sufficiency of the Evidence

         Defendant challenges the sufficiency of the evidence to sustain his conviction of
misdemeanor reckless endangerment. A person “who recklessly engages in conduct which places
or may place another person in imminent danger of death or serious bodily injury” commits the
offense of misdemeanor reckless endangerment. Tenn. Code Ann. § 39-13-103 (1997). A person
“acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct
when the person is aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.” Tenn. Code Ann. § 39-11-106(a)(31) (1997). Tenn.
Code Ann. § 39-11-106 provides, “[t]he risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary person would exercise under
all the circumstances as viewed from the accused person’s standpoint.”

       The State is afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In
determining whether the evidence was sufficient, the relevant question on appeal is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Evans, 838 S.W.2d
185, 190-91 (Tenn. 1992).

         Although this was a bench trial, the findings of the trial judge carry the same weight as a jury
verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). Questions concerning the
credibility of the witnesses and the weight and value to be given their testimony are matters entrusted
to the trial judge as the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
Accordingly, we may neither reweigh nor reevaluate the evidence. Cabbage, 571 S.W.2d at 835.

         The arrest warrant charging Defendant with misdemeanor reckless endangerment indicated
that the victim was the six-year old child who was a passenger in Defendant’s vehicle. In order for
there to be an “imminent” threat of death or serious bodily injury, the victim “must be placed in a
reasonable probability of danger as opposed to a mere possibility of danger.” State v. Payne, 7
S.W.3d 25, 28 (Tenn. 1999). Clearly, the child victim was within the “zone of danger” as defined
by our supreme court. See id. Taken in the light most favorable to the State, the proof showed that
Defendant backed his vehicle from the Ceiga residence at a high rate of speed, ran a stop sign,
proceeded at up to 80 miles per hour down Highway 51 North, attempted to force a police cruiser
off the road and abruptly stopped, losing control of his vehicle when he knew, or should have known
that he was in near proximity to two other vehicles. All of this occurred when Defendant knew he
had a six-year-old child as a passenger. We conclude that the evidence was more than sufficient for
any rational trier of fact to find the essential elements of misdemeanor reckless endangerment beyond
a reasonable doubt.



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                                          III. Sentencing

         The trial court sentenced Defendant to serve 11 months and 29 days in the county jail with
all but 30 days suspended. Defendant was sentenced following a hearing wherein he and his mother
testified. Defendant argues on appeal that his entire sentence should be suspended.

        A trial court is allowed greater flexibility in setting misdemeanor sentences than felony
sentences. State v. Humphreys, 70 S.W.3d 752, 769 (Tenn. Crim. App. 2001). No separate
sentencing hearing is required, though the court must give the defendant a reasonable opportunity
to be heard regarding the length and manner of service of the sentence. Tenn. Code Ann. § 40-35-
302(a) (1997 & Supp. 2002). There is no presumption of a minimum sentence. State v. Johnson,
15 S.W.3d 515, 518 (Tenn. Crim. App. 1999).

        The sentence must be specific and in accordance with the principles, purposes, and goals of
the Sentencing Act. Tenn. Code Ann. § 40-35-302(b) (1997 & Supp. 2002); State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). A determinate sentence should be set with a percentage of not
greater than 75 percent to be served in confinement. Tenn. Code Ann. § 40-35-302(d) (1997 &
Supp. 2002). The trial court should consider the enhancement and mitigating factors when
calculating the percentage of the sentence to be served in confinement. Id.; State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998). The trial court is authorized to place the misdemeanant on probation
either immediately or after a term of confinement. Tenn. Code Ann. § 40-35-302(e) (1997 & Supp.
2002).

         At the time of sentencing, Defendant had no prior criminal record, was 20 years old, and was
not employed full time, but was a member of the Army National Guard. Defendant’s mother
testified that Defendant had tried to take care of her for the past two years due to her inability to
work.

        In sentencing Defendant, the trial court found that one enhancement factor applied, that the
six-year-old child victim was particularly vulnerable because of his age. Tenn. Code Ann. § 40-35-
114(5) (Supp.2002). Defendant had promised to take the child swimming. Defendant was agitated
with the two police officers and with one or more other persons at the Ceiga residence. He placed
the child into his vehicle and immediately initiated the course of conduct which led to his conviction.

         Due to his age, the victim was unable to resist the crime and/or summon help. While this
consideration might apply to any passenger no matter the age, an adult or at least an older minor
passenger might be able to reason with Defendant or take control of the vehicle before it left the
trailer park. Therefore, this enhancement factor is entitled to some, but little, weight. However, as
noted above, the trial court is entitled to much more flexibility in misdemeanor sentencing than in
felony sentencing. Johnson, 15 S.W.3d at 518. The misdemeanant is not presumptively entitled to
the minimum sentence in the absence of enhancement factors. Id.



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       Defendant argues that he is entitled to have his entire sentence suspended because the trial
court did not follow the considerations of Tennessee Code Annotated section 40-35-103(1) in
ordering him to be confined in a jail for 30 days of the 11 months and 29 days sentence. These
considerations are:

         (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;

Tenn. Code Ann. § 40-35-103(1) (1997).
       However, when the trial court determines that total confinement during the sentence is not
appropriate (as in this case), Tennessee Code Annotated section 40-35-103(5) is relevant in
determining how much of the sentence should be served in confinement. See State v. Dowdy, 894
S.W.2d 301, 305 (Tenn. Crim. App. 1994). That section provides:

         The potential or lack of potential for the rehabilitation or treatment of the
         defendant should be considered in determining the sentence alternative or length
         of a term to be imposed. The length of a term of probation may reflect the length
         of a treatment or rehabilitation program in which participation is a condition of
         the sentence. . . .

Tenn. Code Ann. § 40-35-103(5) (1997).
        The trial court specifically found that Defendant had “absolutely no remorse” and that
Defendant was not truthful in his testimony. The trial court stated at the conclusion of the sentencing
hearing that “[t]he Court further notes that the defendant, when he testified earlier, testified that
everybody in the courtroom, except himself, was lying. I think it’s the other way around, Mr.
Dilling.”

        Lack of candor and lack of remorse show a lack of potential for rehabilitation and weigh
against a totally suspended sentence. Dowdy, 894 S.W.2d at 306. The sentence imposed by the trial
court was not inappropriate. Defendant is not entitled to relief on this issue.

                                          CONCLUSION

       For the reasons stated, we affirm the judgment of the trial court.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE

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