         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                             AT NASHVILLE          FILED
                         FEBRUARY 1998 SESSION
                                                      April 7, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk

STATE OF TENNESSEE,                )
                                   )
            Appellee,              )   C.C.A. No. 01C01-9706-CC-00218
                                   )
vs.                                )   Franklin County
                                   )
GREGORY STEELE,                    )   Honorable J. Curtis Smith, Judge
                                   )
            Appellant.             )   (DUI)
                                   )

FOR THE APPELLANT:                     FOR THE APPELLEE:

ROBERT S. PETERS                       JOHN KNOX WALKUP
Attorney At Law                        Attorney General & Reporter
100 First Avenue, S.W.
Winchester, TN 37398                   CLINTON J. MORGAN
                                       Counsel for the State
                                       425 Fifth Avenue North
                                       Cordell Hull Building
                                       Nashville, TN 37243-0493

                                       WILLIAM COPELAND
                                       Asst. Dist. Attorney General
                                       324 Dinah Shore Blvd.
                                       Winchester, TN 37398




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE
                                     OPINION



              The defendant, Gregory Steele, directly appeals his conviction and

sentence imposed by the Franklin County Criminal Court. A jury convicted the

defendant of driving a motor vehicle while under the influence of an intoxicant, first

offense, and the trial judge imposed a $350.00 fine, suspension of driving privileges

for one year, and a sentence of eleven months, twenty-nine days, of which fifteen

days must be spent in confinement with the balance served on probation. The

defendant challenges the sufficiency of the convicting evidence and the sentence

imposed by the trial court. After a review of the record and briefs, we affirm the

judgment of the trial court.



              On October 7, 1995, a Franklin County deputy sheriff observed the

defendant driving his car at night with only one headlamp working. Except for the

faulty headlamp, the defendant was driving his vehicle lawfully, was not speeding,

and was not driving erratically. The deputy stopped the defendant in order to warn

him about the headlamp. As the defendant exited his vehicle and met the officer,

the officer smelled beer on the defendant. The defendant admitted to drinking

“between eight and ten cups of beer.” The officer testified he asked the defendant

to perform a battery of field sobriety tests, but the officer was unable to recall the

results of any tests. A second officer arrived, and although he did not observe the

tests, he testified that the defendant’s speech was “sorta slurred” and the defendant

was “sorta unsteady on his feet.” However, the second officer testified he could

understand the defendant’s words, and the defendant was polite. The defendant

submitted to a blood test, the results of which were stipulated into evidence. The

test results showed the defendant’s blood-alcohol level was .10 percent. The

defendant testified that, prior to being stopped, he had attended a dinner where,

over a four-hour period, he drank “four or five cups of beer, but . . . may have said

eight to ten.” He testified he was not under the influence, and the officer never

informed him that he failed any of the field sobriety tests.


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              When an accused challenges the sufficiency of the convicting

evidence, this court must review the record to determine if the evidence adduced

at trial is sufficient “to support the finding by the trier of fact of guilt beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of

guilt based upon direct evidence, circumstantial evidence, or a combination of direct

and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim.

App. 1990).



              In determining the sufficiency of the convicting evidence, this court

does not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). 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). To the contrary, this court is required to

afford the state 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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              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. Id. at 835. In State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973), our 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.”



              Since a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused, as the appellant, has the

burden in this court of illustrating why the evidence is insufficient to support the

verdicts 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 are insufficient, as a matter of law,



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for a rational trier of fact to find that the accused is guilty beyond a reasonable

doubt. Id. at 914.



              At the time of the offense, Tennessee Code Annotated section 55-10-

401 proscribed driving an automobile on public roads and certain other locations

“while under the influence of any intoxicant, marijuana, narcotic drug, or drug

producing stimulating effects on the central nervous system.” Tenn. Code Ann. §

55-10-401 (1993) (amended 1996). Also, at the time of the offense, Tennessee

Code Annotated section 55-10-408(a) declared a conclusive presumption of

intoxication upon a showing that the blood-alcohol content was .10 percent or

greater. See Amendments, Tenn. Code Ann. § 55-10-408 (Supp. 1996); see also

1995 Tenn. Pub. Acts 517.        That provision for a conclusive presumption of

intoxication, enacted in 1995 but since deleted, was widely viewed as being

unconstitutional. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965 (1985);

Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979) (holding that due

process prohibits the prosecution's use of presumptions which are conclusive in

nature or which shift the burden of proof to the defendant); State v. Sensing, 843

S.W.2d 412, 417 (Tenn. 1992) (admonishing trial judges not to use the word

“presumption” in instructing the jury as to the provisions of Code section 55-10-408).

However, our supreme court has held that a “criminal statute superceded or

repealed by an unconstitutional act is left unaffected by the passage of the void

repealing act.” State v. Dixon, 530 S.W.2d 73, 75 (Tenn. 1975). This principle has

been applied to the 1995 version of Code section 55-10-408. State v. Mark

Spencer King, No. 01C01-9608-CR-00343 (Tenn. Crim. App., Nashville, Sept. 18,

1997). Therefore, the pre-1995 version of section 55-10-408 applies to the present

case. Under that version, a blood-alcohol weight of .10 percent or greater created

a presumption of intoxication and impairment. See Amendments, Tenn. Code Ann.

§ 55-10-408 (Supp. 1996). Under Sensing, the courts must treat this presumption

as a “permissible inference.” Sensing, 843 S.W.2d at 417.




                                          4
              Although the defendant smelled of alcohol, admitted drinking several

cups of beer, and had some slurred speech and unsteadiness on his feet, we agree

with the defendant that many of the usual indicators of driving under the influence

are not in evidence in the present case. He was not observed driving recklessly or

erratically. Also, there is no evidence that he failed any field sobriety test. His

speech was intelligible, and he was polite and well behaved. The defendant

maintains the proof was in equipose and that his testimony that he was not

intoxicated was sufficient to overcome the statutory inference and render the state’s

case insufficient as a matter of law. With this conclusion we cannot agree.



              The inference that the defendant was under the influence of an

intoxicant came into play because the blood test resulted in a finding of .10 percent,

the minimum amount to trigger the inference. Once triggered, “it was the function

of the jury to decide whether . . . [the] inference of intoxication had been rebutted

by the other evidence . . . .” State v. John Thomas Newell, No. 4, slip op. at 3

(Tenn. Crim. App., Jackson, June 17, 1986), perm. app. denied (Tenn. 1986). As

defined in John Thomas Newell, the inference is an inference of fact to which the

jury may accord such probative value as it desires, an inference that is evidentially

present in the case even though there is opposing evidence.



              At trial, the defendant presented a plausible, fact-based argument for

acquittal. Indeed, had the test result yielded a blood-alcohol percentage less than

.10, the case would likely be controlled by State v. James Russell Neill, Jr., No.

02C01-9503-CC-00067 (Tenn. Crim. App., Jackson, Mar. 6, 1996). In James

Russell Neill, the officer stopped Neill’s car because of its presence at night in a

high-crime area. Neill smelled of alcohol and admitted he had been drinking. The

officer found alcohol inside the car. However, there had been no abnormal driving.

The arresting officer placed no field sobriety test results into evidence and testified

that Neill’s speech was not slurred, “his gait was normal, and he had no difficulty

with his motor skills.” Id., slip op. at 3. A breath-alcohol test yielded a .09 percent



                                          5
result. This court commented,

       The mere odor of alcohol upon one’s breath is insufficient to sustain
       a conviction for driving under the influence of an intoxicant.
       Moreover, a blood-alcohol level of .09 percent does not create an
       inference . . . . Certainly a defendant may be convicted of the offense
       of driving while under the influence of an intoxicant where the results
       of the breath test show a blood-alcohol level of less than .10 percent,
       but in such cases, there must also be evidence of the defendant’s
       impaired driving ability. In this case, the record is simply devoid of
       such evidence.

Id., slip op. at 4-5 (citations omitted).       This court reversed Neill’s conviction.

However, in the present case, the blood-alcohol level was sufficient to trigger the

statutory inference. The legislature prescribed an inference of intoxication, and in

order for it to be applied, a line of demarcation must be drawn. Moreover, the line

must be drawn where the legislature dictates. Because the defendant’s blood-

alcohol level crossed that line, intoxication was a question of fact for the jury to

determine. The defendant had the right and opportunity to challenge the inference

and to persuade the jury that he was not intoxicated; he had his day in court on this

issue. Now, the jury’s verdict of guilty stands presumptively correct on appeal.



              In the light most favorable to the state, the statutory inference,

especially in conjunction with the proof that the defendant had in fact been drinking,

that he smelled of alcohol, that his speech was “sorta slurred” and he was “sorta”

unsteady on his feet, established a sufficient basis for the jury’s verdict.



              The defendant’s second issue is his claim that the trial court erred in

requiring him to serve fifteen days in confinement. He also complains that the

sentencing determination was made without giving him a reasonable opportunity to

be heard.



              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) (1997). Misdemeanor sentences must be specific and in



                                            6
accordance with the principles, purpose, and goals of the Criminal Sentencing

Reform Act of 1989. Tenn. Code Ann. §§40-35-104, 302 (Supp. 1996); Tenn. Code

Ann. §40-35-117 (1990); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The

misdemeanor offender must be sentenced to an authorized determinant sentence

with a percentage of that sentence designated for eligibility for rehabilitative

programs. Generally, a percentage of not greater than 75% of the sentence should

be fixed for a misdemeanor offender; however, a DUI offender may be required to

serve 100% of his sentence. Palmer, 902 S.W.2d at 393-94. In determining the

percentage of the sentence, the court must consider enhancement and mitigating

factors as well as the legislative purposes and principles related to the sentencing.

Id.



              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available

is appropriate. 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) (1997). The legislature has encouraged courts to

consider public or private agencies for probation supervision prior to directing

supervision by the Department of Correction. Tenn. Code Ann. §40-35-302(f)

(1997). The governing statute provides the trial court has continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. 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).



              The trial court imposed split confinement and incarcerated the

defendant for fifteen days.       Although the fifteen days exceeds the minimum

confinement of forty-eight hours for first-offense DUI, it is nevertheless within a

range of reasonableness that must be entrusted to the trial court. We find no fault

with the sentence in this case.




                                          7
              Furthermore, the trial court committed no prejudicial error in the

manner in which it determined the sentence. After the jury returned its verdict and

was dismissed, the trial judge indicated he was ready “to go ahead and have a

sentencing hearing at this point in time.” He asked the assistant district attorney

general if the state had any proof to offer, and the state declined. At that point,

defense counsel spoke and had the following colloquy with the trial judge:

       Defense attorney: Your Honor, we have nothing in addition.

       Court: All right.

       Defense attorney: We will, however, be filing the necessary motions.

       Court: Yes, sir. All right, counsel, I’m ready to impose sentence.

       Defense attorney: Yes, Your Honor.

The court proceeded to impose sentence in the case, without objection by the

defendant. We find the defendant was given a reasonable opportunity to be heard.

Moreover, had there been no reasonable opportunity, the defendant has waived the

issue by failing to object, see Tenn. R. App. P. 36(a), and furthermore he has failed

to demonstrate any prejudice from the asserted lack of opportunity to be heard.

Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).



              Finding no error, we affirm the judgment of the trial court.




                                          ________________________
                                          CURWOOD WITT, JUDGE



CONCUR:




__________________________
GARY R. WADE, JUDGE



__________________________
WILLIAM M. BARKER, JUDGE




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