             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                           JANUARY 1999 SESSION
                                                         March 30, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 01C01-9803-CR-00124
             Appellee,             )
                                   )    DAVIDSON COUNTY
VS.                                )
                                   )    HON. FRANK G. CLEMENT, JR.,
SEAN ASHLEY TAYLOR,                )    JUDGE
                                   )
             Appellant.            )    (Driving Under the Influence)



FOR THE APPELLANT:                      FOR THE APPELLEE:


KARL DEAN                               JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

HOLLIS I. MOORE, JR.                    DARYL J. BRAND
Asst. Public Defender                   Asst. Attorney General
1202 Stahlman Bldg.                     Cordell Hull Bldg., 2nd Fl.
Nashville, TN 37201                     425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        VICTOR S. JOHNSON, III
                                        District Attorney General

                                        EDWARD S. RYAN
                                        Asst. District Attorney General
                                        222 Second Ave., South
                                        Nashville, TN 37201




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The Davidson County grand jury indicted the defendant on one count of

driving under the influence, first offense. Following a trial, a jury convicted him of the

charged offense. Immediately following the verdict, the trial judge sentenced him to

eleven months, twenty-nine days with all but two days suspended and two hundred hours

of public service work. The trial judge also revoked the defendant’s driving privileges,

required that he attend an alcohol treatment program, and assessed a fine of three

hundred fifty dollars ($350). The defendant now appeals and argues that the evidence

was insufficient to support his conviction and that his sentence is improper. After a

review of the record and applicable law, we find no merit to the defendant’s arguments

and, therefore, affirm the judgment of the trial court.



              In the early morning hours of February 11, 1995, Officer Hunsaker of the

Metropolitan Police Department was flagged down by an employee of the Classic Cat.

Officer Hunsaker went inside the club and found the defendant asleep at one of the

tables with a half-empty bottle of scotch in his lap.      Officer Hunsaker shook the

defendant’s shoulder and after the defendant woke, asked him if he needed a ride home.

At this point, Officer Hunsaker noticed a “strong odor of alcohol” on the defendant and

that the defendant seemed uncoordinated. According to Officer Hunsaker, the defendant

said he did not need a ride because “he had someone coming to get him.” Officer

Hunsaker then left the club and went to his car. While in his car, Officer Hunsaker saw

the defendant walk out of the bar, get into his car, and drive away. Officer Hunsaker then

followed the defendant and observed that his car was “weaving in and out of the center-

turn lane.” Officer Hunsaker activated his emergency equipment at which point the

defendant made a wide left turn and hit the grass area located off of the shoulder of the

road. After the defendant came to a complete stop, Officer Hunsaker approached the


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car. Officer Hunsaker testified that after he asked the defendant to step out of the car,

the defendant used the door to brace himself and get out of the car. According to Officer

Hunsaker, the defendant seemed disoriented, unsteady, and unresponsive. Additionally,

the defendant’s eyes were bloodshot, his speech was slurred, and he smelled of alcohol.

Based upon his observations, Officer Hunsaker believed that the defendant was

intoxicated and asked the defendant to submit to a field alcohol test. The defendant

refused and was placed under arrest for driving under the influence. The defendant then

refused to submit to a breath-alcohol test. Upon arrival at the police station, the

defendant again refused to consent to a breath-alcohol test. The bottle of scotch the

defendant had in the bar was subsequently found in the defendant’s car.



               As his first issue, the defendant contends that the verdict is not supported

by sufficient evidence. A defendant challenging the sufficiency of the proof has the

burden of illustrating to this Court why the evidence is insufficient to support the verdict

returned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt

for lack of sufficient evidence unless the facts contained in the record and any inferences

which may be drawn from the facts are insufficient, as a matter of law, for a rational trier

of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).



               When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

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

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d


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832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value to

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

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              The defendant argues that his conviction rests entirely on the testimony of

Officer Hunsaker and, as Officer Hunsaker’s testimony was filled with inconsistencies,

the jury did not have sufficient evidence upon which to convict the defendant. The

defendant also complains the jury “refused to credit any of the defendant’s testimony.”

However, as previously stated, the credibility of the witnesses is determined by the trier

of fact, not this Court. The jury obviously believed Officer Hunsaker’s testimony over that

of the defendant. As this was entirely within the province of the jury, this contention is

without merit.



              The defendant next contends that the trial court erred in sentencing him to

serve forty-eight hours in jail in addition to two hundred hours of public service work.

When a defendant complains of his or her sentence, we must conduct a de novo review

with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that

the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments. This presumption, however, “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).




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              The defendant argues that T.C.A. § 55-10-403(n) allows the trial judge to

sentence a defendant convicted of driving under the influence, first offense, to the

minimum period of confinement set out in subsection (a) or to two hundred hours of

public service work, but not both. However, the defendant fails to address T.C.A. § 55-

10-403(a)(1) which states,

              After service of at least the minimum sentence day for day,
              the judge has the discretion to require an individual convicted
              of a violation of the provisions of §§ 55-10-401 - 55-10-404 to
              remove litter from the state highway system, public playgrounds,
              public parks or other appropriate locations for any prescribed
              period or to work in a recycling center or other appropriate location
              for any prescribed period of time in lieu of or in addition to any of
              the penalties otherwise provided in this section . . . .

T.C.A. § 55-10-403(a)(1) (emphasis added). This statute gives the trial judge the

authority to sentence a defendant to public service work in addition to a period of

confinement. Such public service work can include the removal of litter from certain

areas or work in a recycling center or “other appropriate location.” This section also gives

the judge the authority to sentence a defendant to perform public service work “for any

prescribed period of time.”



              Here, the trial judge sentenced the defendant to two hundred hours of

public service work. Under § 55-10-403(a), he had the statutory authority to do so while

simultaneously imposing a sentence of incarceration.          Therefore, the defendant’s

contention is without merit.



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




                                                  ______________________________
                                                  JOHN H. PEAY, Judge




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CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
THOMAS T. W OODALL, Judge




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