           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                            APRIL SESSION, 1995           September 19, 1995

                                                        Cecil Crowson, Jr.
STATE OF TENNESSEE,               )   C.C.A. NO. 03C01-9501-CR-00024Clerk
                                                        Appellate Court
                                  )
      Appellee,                   )
                                  )
                                  )   HAMBLEN COUNTY
VS.                               )
                                  )   HON. JAMES EDWARD BECKNER
DEWAYNE SMITH,                    )   JUDGE
                                  )
      Appellant.                  )   (DUI, Reckless Endangerment)


          ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMBLEN COUNTY


FOR THE APPELLANT:                    FOR THE APPELLEE:

GREG W. EICHELMAN                     CHARLES W. BURSON
Office of the Public Defender         Attorney General and Reporter
Third Judicial District
1609 College Park Drive, Box 11       CYRIL V. FRASER
Morristown, TN 37813-1618             Counsel for the State
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      C. BERKELEY BELL
                                      District Attorney General

                                      JOHN DUGGER
                                      Assistant District Attorney General
                                      County Office Complex
                                      113 W. Church Street
                                      Greeneville, TN 37743


OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

DAVID H. WELLES, JUDGE
                                        OPINION
        The Defendant appeals as of right following a judgment entered on a jury verdict

finding him guilty of DUI, evading arrest, reckless endangerment, contributing to the

delinquency of a minor, and driving on a suspended license. He was sentenced to

concurrent sentences of eleven months and twenty-nine days for each conviction

except for driving on a suspended license, for which he was sentenced to a concurrent

sentence of six months. The Defendant argues two issues on appeal: (1) That the

evidence introduced at trial was insufficient to convict him of each of the five crimes;

and (2) that the sentences imposed were erroneous. We reverse the conviction of

contributing to the delinquency of a minor. In all other respects, the judgment of the

trial court is affirmed.1



        On April 6, 1994, Officer Mark McElhaney was waiting on a traffic light at an

intersection when he saw a rose-colored Camaro going down the hill at an extremely

high rate of speed. The driver apparently tried to slow down as he saw the officer at

the intersection, but the car started to spin sideways and then continued on at a high

rate of speed. As the car went by, the officer identified the passenger as James Carter.

The officer then turned on his blue lights and began to pursue the car. Before he lost

visual contact with the car, he saw it go around a truck waiting at a light and then make

a right turn in front of the truck.



        A few minutes later, the car pulled into a Texaco Food Mart at a high rate of

speed. Theda Christian, an employee at the Texaco, saw three males, later identified

as the Defendant, Carter, and Glenn Townsend, get out of the car and start running in

different directions. She later identified the Defendant as the driver of the car. After


1
 W e note from the record that the Defendant is currently incarcerated in the penitentiary on other
unrelated charges.

                                                  -2-
going into the store briefly and telling the employee not to call the police, the

Defendant, along with Carter and Townsend, got back into the car and drove to a

building a short distance away.



       Another officer arrived shortly thereafter and saw the car parked very closely to

the building. He saw the three suspects walking a short distance away and stopped

them. All three appeared to have been drinking. The Defendant was carrying a police

scanner. Each denied being the driver of the car. After being identified as the driver,

the Defendant was given a breathalyzer test in which he registered .11 percent.



       The first issue to be addressed is the sufficiency of the evidence to support the

conviction. When an accused challenges the sufficiency of the convicting evidence,

this court must review the record to determine if the evidence presented during the trial

was sufficient "to support the finding of the trier of fact of guilt beyond a reasonable

doubt." T.R.A.P. 13(e). This rule is applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a combination of direct and circumstantial

evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).



       In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor

may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). This court is required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627,

632 (Tenn. Crim. App. 1988).




                                            -3-
       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence, are resolved

by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.

App. 1987). In State v. Grace, 493 S.W.2d 474 (Tenn. 1973), the Tennessee Supreme

Court said, "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." Id. at 476.


       Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, id., the accused has the burden in this court of illustrating

why the evidence is insufficient to support the verdict returned by the trier of fact. State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of

guilt due to the sufficiency of the evidence unless the facts contained in the record and

the inferences which may be drawn from the facts are insufficient, as a matter of law,

for a rational trier of fact to find the accused guilty beyond a reasonable doubt.

Matthews, 805 S.W.2d at 780.



       Each count will be analyzed separately below.



       The first contention by the Defendant is that the State failed to prove that he

was the driver of the car. Despite testimony by Carter that he was the driver of the car,

the first officer identified Carter as a passenger in the car as it sped by him at the

intersection. Thus, either Townsend or the Defendant was driving at the time, after

eluding the first officer and pulling into the Texaco station shortly thereafter. As the

three got out of the car, the Texaco employee identified the Defendant as the driver.

This evidence was sufficient to sustain a finding by the jury that the Defendant was the

driver of the car from the time that Officer McElhaney witnessed the car speeding until

it stopped at the Texaco station.


                                             -4-
       The Defendant also argues that because the actual written printout of the

breathalyzer test given to the Defendant was lost, there was insufficient evidence to

prove that he was intoxicated. However, the reading of the printout appeared in the

arrest warrant, which was submitted into evidence.              Officer McElhaney, who

administered the test, testified that the test reading was .11 and that the Defendant had

slurred speech, smelled strongly of alcohol, and had red eyes.



       Also, the Defendant argues that under United States v. Agurs, 427 U.S. 97

(1976), the State's failure to provide the actual printout of the test is a suppression of

evidence in violation of the Defendant's right to due process. However, there is no

proof that the State has suppressed the printout. Apparently, the officer lost it. We

conclude there was sufficient evidence to support the Defendant's conviction of DUI

beyond a reasonable doubt.



       Under Tennessee Code Annotated section 39-16-603(a)(1), it is unlawful for a

person to intentionally flee from a police officer if the person knows the officer is

attempting to arrest the person. The first officer testified that as the car driven by the

Defendant neared the intersection where he was waiting, the car started to stop or slow

down but, because it was going too fast, it started to skid and turn sideways. It then

continued on at a high rate of speed. From this, a jury could conclude that the

Defendant saw the officer and attempted to slow down, but then attempted to elude the

officer when he realized his attempt to stop would be futile.



       After turning on his lights and starting to pursue the car, McElhaney saw the car

go around a truck waiting at the next intersection and then make a right turn in front of

it. The jury could reasonably have concluded from this fact that the Defendant knew

he was being chased and was attempting to elude McElhaney. When the car arrived

at the Texaco, the Defendant hurried in and told the store clerk not to call the police.

                                           -5-
         Also, when the three suspects were found walking toward some railroad tracks

after having parked the car near the back side of a building, Carter was found carrying

a police scanner. Regardless of who was carrying the scanner while the three were in

the car, the jury could have inferred that the Defendant was listening to the scanner

while driving the car and knew he was being chased. We conclude there was sufficient

evidence to support the Defendant's conviction of evading arrest beyond a reasonable

doubt.



         Tennessee Code Annotated section 39-13-103(a) makes it a crime to recklessly

engage in conduct which may place another person in imminent danger of death or

serious bodily injury. The Defendant was driving at a high rate of speed when nearing

the intersection where the first officer was waiting and nearly lost control of the vehicle

as he tried to stop. He then continued on at a high rate of speed, and soon neared

another intersection where a truck was waiting at a stop-light. The Defendant pulled

around the truck and made a right turn in front of it. The policeman testified that at this

point he feared a bad accident was going to happen. When the Defendant pulled into

the Texaco, the store clerk heard "a noise like someone was driving really fast," and

then she saw the Defendant's car "come flying in" to one of the pumps. In view of the

evidence showing the Defendant's driving recklessly and at a high rate of speed, we

conclude there was sufficient evidence to convict the Defendant of reckless

endangerment beyond a reasonable doubt.



         The Defendant was also convicted of contributing to the delinquency of a minor.

Specifically, the Defendant was charged with providing alcohol to Glenn Townsend, a

minor, in violation of Tennessee Code Annotated section 37-1-156(a). Despite the fact

there was proof that Townsend had been drinking before the incident, there is no

evidence in the record to show that the Defendant had anything to do with Townsend

acquiring alcoholic beverages. The only relevant testimony came from Townsend, who

                                            -6-
stated that the Defendant was not the one who had given him the alcohol. We

conclude there was insufficient evidence to convict the Defendant of contributing to the

delinquency of a minor beyond a reasonable doubt. This conviction is reversed and the

charge is dismissed.



       Because we have concluded that there was sufficient evidence for the jury to find

that the Defendant was the driver of the car, the proof that he had a suspended license

at the time of the incident is sufficient to convict him of the offense of driving on a

suspended license.



       The Defendant next argues that he was erroneously sentenced. When there is

a challenge to the length, range or manner of service of a sentence, it is the duty of this

court to conduct a de novo review with a presumption that the determinations made by

the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is

"conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances." State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide

that the burden is on the appellant to show the impropriety of the sentence.



       Our review requires an analysis of (1) the evidence, if any, received at the trial

and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and

the arguments of counsel relative to sentencing alternatives; (4) the nature and

characteristics of the offense; (5) any mitigating or enhancing factors; (6) any

statements made by the defendant in his own behalf; and (7) the defendant's potential

for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103 and -210; State

v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987) .




                                            -7-
         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 the sentence. Tenn. Code Ann. § 40-35-302(a). The

sentence must be specific and consistent with the purposes and principles of the

Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(b). The trial

court retains the authority to place the Defendant on probation either immediately or

after a period of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e).

Misdemeanor sentencing is designed to provide the trial court with continuing

jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike one

convicted of a felony, is not entitled to a presumption of a minimum sentence. State

v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn.

1994).



         Following his conviction, the Defendant was sentenced to eleven months,

twenty-nine days, at 75 percent R.E.D., for DUI, reckless endangerment, evading

arrest, and contributing to the delinquency of a minor, and to six months at 75 percent

R.E.D. for driving on a suspended license. All sentences were ordered to be served

concurrently. The sentences of eleven months and twenty-nine days are the maximum

sentences for these misdemeanors.



         First, the Defendant contends that the trial court improperly enhanced the

sentence for the reckless endangerment conviction by including enhancement factor

(16) under Tennessee Code Annotated section 40-35-114, which allows for elevating

a sentence for a crime where the crime was committed under circumstances where the

potential for bodily injury to another person was great.



         The Defendant correctly argues that a sentence may not be enhanced by a

factor which was necessary for the commission of the crime. State v. Thomas, 755

                                          -8-
S.W.2d 838 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1988). Thus,

enhancement factor (16) cannot be applied to a reckless endangerment sentence

because it is one of the elements necessary for the commission of the crime. However,

the judge did not apply enhancement factor (16) to the reckless endangerment count:

"the reckless circumstances of the offense are so great that it does activate

enhancement factor 16 for consideration as to some of the offenses, such as the

driving offenses, other than the reckless endangerment." The Court did not apply factor

(16) to the reckless endangerment count and no error was committed.



       The Defendant also argues generally that the maximum sentences given were

inappropriate in this case. In determining the sentence for each count, the court

applied enhancement factor (16) to the DUI and evading arrest counts. Factor (1),

previous history of criminal convictions, and factor (8), failure to comply with conditions

of release on parole, were considered as enhancement factors for the sentences for

all crimes. Tenn. Code Ann. § 40-35-114. The application of factor (1) was appropriate

because the Defendant has a long history of criminal convictions, including criminal

trespass, contributing to the delinquency of a minor, larceny, two convictions for grand

larceny, two convictions for breaking and entering, escape from custody while serving

time for a felony, public intoxication, leaving the scene of an accident, failure to report

an accident, and driving without a license.         Also, enhancement factor (8) was

appropriate because the Defendant was on parole at the time of this incident.



       With the application of these two enhancement factors, especially the

Defendant's extensive criminal record, and no mitigating factors, we are unable to

conclude that the trial court erred or abused its discretion in sentencing the Defendant.




                                            -9-
       The Defendant's conviction of contributing to the delinquency of a minor is

reversed and that charge is dismissed. In all other respects, the judgment of the trial

court is affirmed.



                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JOHN A. TURNBULL, SPECIAL JUDGE




                                         -10-
