         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                            MAY, 1998 SESSION
                                                       September 14, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk



STATE OF TENNESSEE,              )   No. 03C01-9709-CR-00392
                                 )
      Appellee                   )
                                 )   Greene County
vs.                              )
                                 )   Honorable James E. Beckner, Judge
TONY MURPHY MCKINNEY,            )
                                 )   (DUI, Driving on revoked license)
      Appellant.                 )



FOR THE APPELLANT:                   FOR THE APPELLEE:

MICHAEL A. WALCHER                   JOHN KNOX WALKUP
Assistant Public Defender            Attorney General & Reporter
1609 College Park Dr., Box 11
Morristown, TN 37813-1618             CLINTON J. MORGAN
                                      Counsel for the State
                                      425 Fifth Ave. North
                                      2d Floor, Cordell Hull Bldg.
                                      Nashville, TN 37243-0493

                                      C. BERKELEY BELL
                                      District Attorney General

                                      CECIL E. MILLS, JR.
                                      Assistant District Attorney General
                                      109 S. Main St.
                                      Greeneville, TN 37743




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION



               The defendant, Tony Murphy McKinney, appeals pursuant to Rule 3,

Tennessee Rules of Appellate Procedure, from his judgment of conviction in the

Criminal Court of Greene County for driving under the influence, a Class A

misdemeanor, and for driving with a revoked license, a Class B misdemeanor. He

was ordered to serve one hundred percent of an eleven month and twenty- nine day

sentence for DUI and seventy-five percent of a six month sentence for driving on a

revoked license. In this appeal, the defendant claims that:

                1.    The evidence is insufficient to support his
                      conviction for driving under the influence.

               2.     The admission of defendant’s statements to the police which
                      were not disclosed in discovery was prejudicial.

               3.     The defendant’s sentence is excessive.

After reviewing the record before us and the applicable law, we affirm the judgment

of the trial court.



               At approximately 8:00 p.m. on November 3, 1996, the Greene County

Sheriff’s Department received two calls concerning the defendant. The first call

involved a domestic dispute. In the second call, James Reagan reported that the

defendant was driving his pick-up truck while he was intoxicated. Two officers

responded in separate cars. When they arrived at the defendant’s house, someone

in the house told them that the defendant had left in his truck. Furniture and other

items were sitting on the front porch. Reagan, who lived next door and who is the

father of the defendant’s girl friend, spoke to the officers in the yard. He told them

that the defendant had been drinking all day and had been driving the truck around

the yard spinning the wheels and tearing up the grass. After getting into a dispute

with Reagan’s daughter, Gwen, the defendant took off in the truck.



               As the officers drove off in opposite directions to begin their search,

they observed a green and white pick-up truck matching the description given by



                                          2
James Reagan passing another vehicle in a no-passing zone at the top of a hill.

The speeding truck was nearly out of control as it slid into the defendant’s driveway

and drove around to the rear of the house. Neither of the officers were able to see

the driver of the truck. Reagan also observed the truck as it turned in the driveway.

From his vantage point, he saw the defendant leave the truck and stagger toward

the back steps. He watched as someone in the house came out and helped the

defendant into the house.



              The officers immediately turned their vehicles around and drove back

to the defendant’s residence. One officer went to the rear of the house and found

that the hood of the truck was very warm. The other officer approached the open

front door, and when he was invited inside, he entered and found the defendant

sitting on the couch with a beer in his hand. When asked where he had been, the

defendant replied, “I’ve been sitting here on this couch.” At trial the officer testified

that when he asked the defendant who had been driving the truck, the defendant

said, “Nobody, I don’t reckon.” According to the officer, the defendant’s eyes were

red, and he became loud and belligerent. The odor of alcoholic beverage was very

strong, and when the officer got the defendant to his feet, he staggered and needed

help to get to the patrol car. Just before he placed the defendant in the car,

someone on the porch asked the defendant to leave the keys to the truck. The

defendant took the keys out of his front pocket and gave them to that person. After

transporting the defendant to the detention center, the officer advised the defendant

of his rights under the implied consent law. The defendant refused to submit to a

breathalyser test. When the officer checked the defendant’s driving record, he

learned that the defendant’s license to operate a motor vehicle had been revoked.1



              The defendant testified on his own behalf. He said that he spent the

day hauling junk with his cousin, Scott Liner. Liner drove the truck. When they




       1
             A certified copy of the defendant’s driving record showing the
license revocation was admitted into evidence.

                                           3
returned home at about 4:30 p.m., the defendant admitted he became “tipsy.”

When they were unloading a truck hood, it slipped and hit him on the head.

According to the defendant, the blow rendered him unconscious, and when the

police came the first time, he was lying on his bed. He said that he did not drive the

truck that day. He had, however lent the truck to Ed Woodall who needed to haul

some wood. According to the defendant, Woodall returned the truck at about 7:00

p.m. that evening.



              Five witnesses corroborated the defendant’s version of the events. 2

According to these witnesses, the defendant received a hard knock on the head

while he and Scott Liner were unloading some junk. When the officers first came

to the house, the defendant was lying on his bed with a cloth on his head. Gwen

Reagan said that when she dropped a can of beer onto a glass coffee table, the

table broke, and she put it out on the front porch. Ed Woodall and Missy McKinney

testified that they had borrowed the truck that evening. Woodall said he saw a

deputy’s car on the road as he returned to the defendant’s house. He admitted he

was speeding because he was late for work. He estimated that he was driving at

about 55 miles per hour. Woodall said that the steering on the truck was defective

and that when he turned into the driveway, the truck skidded sideways. He then

gave the keys to Gwen Reagan, and Missy McKinney took him to work in his car.

Gwen Reagan denied that she and the defendant had any altercation that day. She

said she made no telephone calls to the police. The other witnesses also denied

making the call.



              On the above evidence, the jury found the defendant guilty of driving

under the influence and driving on a revoked license. The defendant now contends

that the evidence is insufficient to support his convictions.




       2
             Testifying for the defense were Ed Woodall, Missy McKinney, the
defendant’s sister, Scott Liner, the defendant’s cousin, Gwen Reagan, the
defendant’s girl friend, and Jennifer Long, her sister.

                                          4
              When an accused challenges the sufficiency of the evidence, an

appellate court’s standard of review is, whether after considering 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. Jackson v.

Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875

S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). Since a jury conviction

removes the presumption of innocence with which a defendant is initially cloaked

and replaces it with one of guilt, a convicted defendant has the burden of

demonstrating on appeal that the evidence is insufficient. State v, Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). In determining that sufficiency, this court does not

reweigh or reevaluate the evidence.       State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).



              The defendant was convicted of two offenses: driving under the

influence of an intoxicant and driving while his license was revoked.            Under

Tennessee law, the state must prove beyond a reasonable doubt that (1) the

defendant was under the influence of an intoxicant, (2) while under the influence,

the defendant drove or was in physical control of a motor driven vehicle, and (3) that

the defendant’s action took place “on any of the public roads and highways of the

state, or on any streets or alleys, or while on the premises of any shopping center,

trailer park or any apartment house complex, or any other premises which is

generally frequented by the public at large. . . . “ Tenn. Code Ann. § 55-10-401

(Supp.1997). To convict a defendant of driving with a revoked license, the state

must prove that the person drove a motor vehicle on a public highway at a time his

privilege to drive was revoked. See Tenn. Code Ann. § 55-50-504(a)(1) (Supp.

1997).




                                           5
              In this instance, the defendant admitted that he was drunk when the

officer arrived at his residence and that his driver’s license had been revoked. The

defendant does not contest the fact that his truck was driven down a public roadway

shortly before the officers arrived to arrest him. Therefore, the sole factual issue is

whether the defendant was the driver of the truck. Although the police officers were

unable to identify him as the driver, James Reagan testified positively that he saw

the defendant drive the truck out onto the roadway. He saw him park the truck on

his return and watched as he attempted to stagger into the house.        The defense

argues that Reagan’s testimony is incredible and is outweighed by the testimony of

the five defense witnesses. However, questions concerning the credibility of the

witnesses, the weight and value of the evidence, as well as all factual issues raised

by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d

833, 835 (Tenn. 1978).       In this instance, the jury chose to believe Reagan’s

testimony and to disbelieve that of the defense witnesses. This court does not

reweigh the evidence or determine the credibility of witnesses.        Cabbage, 571

S.W.2d at 835.



              In addition, the record contains other evidence from which the jury

could infer that the defendant was the driver of the truck. When the deputies first

arrived at the defendant’s residence, they were told that the defendant had left in

the truck. Then as the deputies drove away, they observed a truck like the

defendant’s barrel down the hill and make an out of control turn into the defendant’s

driveway. They found the defendant’s truck parked behind the house. Its hood was

very warm, and when the obviously intoxicated defendant was arrested a few

moments later, he had the keys in his pocket. The evidence is more than sufficient

to prove beyond a reasonable doubt that the intoxicated defendant drove his truck

on a public roadway while his license was revoked.



              In his second issue, the defendant contends the state failed to

disclose an oral statement he made to the officers at the time of his arrest and then



                                          6
entered the statement into evidence at trial. The state argues that the defendant

waived the issue by failing to make a timely objection and because the trial court

never ruled on the issue. In any case, the state contends, the remark was relatively

innocuous and not at all prejudicial. For the reasons discussed below, we find that

the defendant is not entitled to relief despite the state’s failure to disclose his oral

statement.



              During his testimony, Deputy Frank Waddell stated that when he

asked the defendant who was driving the truck, the defendant responded, “Nobody,

I don’t reckon.” This statement was at odds with the defendant’s later testimony

that Ed Woodall had borrowed his truck to fetch firewood. Defense counsel did not

immediately object.      However, once the prosecutor completed his direct

examination, counsel requested a bench conference and raised the objection to the

trial court. The prosecutor agreed that at the preliminary hearing the officer had

testified to only one statement on the part of the defendant. The trial court then

stated: ‘You’re talking about discovery, right? It needs to be provided in discovery.

If it isn’t, hasn’t been, then it should be excluded.”



              At this point, the bench conference was concluded. During cross-

examination, defense counsel read the following portion of the officer’s preliminary

hearing testimony:

              I went in and Mr. McKinney was sitting on the couch. I
              asked him where he had been. Nowhere, I’ve been
              sitting right here all night. He had a beer in his hand.
              I said, well, you’re under arrest for DUI, and I arrested
              him.

Waddell agreed that his testimony at the preliminary hearing did not include any

statement by the defendant other than “I’ve been sitting here all night.”



              We cannot say that the defendant failed to make a timely objection to

the undisclosed statement.         Although defense counsel did not make a

contemporaneous objection, he brought the matter to the attention of the trial court



                                           7
within a very brief period of time. We also find that the trial court ruled on the

matter. The prosecutor acknowledged that the defense was aware of only one

statement, and the trial court correctly found that if the statement had not been

disclosed, it should be excluded. See Tenn. R. Crim. P. 16(a)(1)(A), -(d)(2).3

Defense counsel did not ask for any relief at that time, and the trial court took no

further action. The defendant raised the issue in his motion for a new trial and

argued the matter at the hearing. After listening to the arguments of counsel, the

trial court stated that his instructions to the jury were curative and, as a result, the

defendant was not prejudiced. The record does not include the jury instructions or

any discussions between the trial court and the attorneys concerning those

instructions. The defendant bears the burden of preparing an adequate record in

order to allow for meaningful appellate review. State v. Ballard, 855 S.W.2d 557,

560 (Tenn. 1993); Tenn. R. App. P. 24. In the absence of an adequate record, the

appellate court must presume that the trial court’s rulings were supported by the

evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). In this

instance, the trial judge found that a curative instruction to the jury rendered the

admission of the undisclosed statement harmless. Without the jury instruction, we

are unable to conclude that the trial court’s determination is erroneous. Moreover,

during cross-examination, defense counsel used the preliminary hearing testimony

to impeach the officer’s credibility. Any prejudice from the state’s non-disclosure of




       3
              Rule 16 requires that the state, upon request of the defendant,
disclose
             the substance of any oral statement which the state
             intends to offer in evidence at the trial made by the
             defendant whether before or after arrest in response
             to interrogations by any person then known to the
             defendant to be a law-enforcement officer. . . .
Tenn. R. Crim. P. 16(a)(1)(A).

In addition, the rule provides that:
               If at any time during the course of the proceedings it
               is brought to the attention of the court that a party has
               failed to comply with this rule, the court may order
               such party to permit the discovery or inspection, grant
               a continuance, or prohibit the party from introducing
               evidence not disclosed, or it may enter such other
               order as it deems just under the circumstances.
Tenn. R. Crim. P. 16(d)(2).

                                           8
the defendant’s second statement was minimal and harmless beyond a reasonable

doubt.



              The defendant also contends that the sentences imposed by the trial

court are excessive. We respectfully disagree.



              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) (1997). 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). Therefore, if the trial court follows the statutory sentencing

procedure, makes findings of fact which are adequately supported by the record,

considers and properly applies the factors and principles relevant to sentencing

under the 1989 Sentencing Act, an appellate court may not disturb the sentence

even if it would prefer a different result. State v. Fletcher. 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).       The defendant has the burden of showing           the

impropriety of his sentence. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n

Comments.



              A misdemeanant, unlike the felon, is not entitled to the presumption

of a minimum sentence. State v. Creasey, 885 S.W.2d 829, 832 (Tenn. Crim. App.

1994).   The court must determine the percentage of the sentence which the

misdemeanant must serve before becoming eligible for certain release programs,

and generally, sentencing for misdemeanors ranges between zero and seventy-five

percent. Tenn. Code Ann. § 40-35-302(d) (1997). However in DUI convictions, the

confinement may extend to the maximum of one hundred percent. State v. Palmer,

902 S.W.2d 391, 394 (Tenn. 1995). The service percentage is to be based on the

sentencing principles and the enhancement and mitigating factors. State v. Gilboy,



                                         9
857 S.W.2d 884, 888-889 (Tenn. Crim. App. 1993).          Thus, if warranted by the

evidence, the trial court may properly sentence a first time DUI offender to the

maximum sentence of eleven months, twenty-nine days at one hundred percent.



              In the case before us, the trial court required the defendant to serve

100 percent of the eleven month and twenty-nine day sentence.4 In addition to the

mandatory license revocation, the court imposed the fine levied by the jury.5 For

driving on a revoked license, the trial judge imposed the maximum sentence of six

months and a $500 fine. See Tenn. Code Ann. § 40-35-411(e)(2) (1997) and § 50-

50-603 (Supp. 1997). The sentences are to be served concurrently. The trial court

held a sentencing hearing and considered the presentence report, the evidence

presented at the hearing, and the appropriate sentencing principles. Therefore, we

review the defendant’s sentences with the presumption that the trial court’s

determinations are correct.



              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).




       4
             We note that the trial court offered the defendant the opportunity to
admit himself into an in-patient alcohol treatment program. Each day the
defendant spends in the program will be counted against the eleven months and
twenty-nine days he must serve.
       5
                The fine levied by the jury and imposed by the trial court was
$1,510. The DUI statute establishes a maximum fine of $1,500 for a first
offense, Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 1997), but “an additional fine
of ten dollars ($10.00)” is imposed in DUI cases for the benefit of the Traumatic
Brain Injury Fund. See Tenn. Code Ann. § 68-55-304 (1996). We commend the
trial court for assuring that any such “additional fine” was set by the jury before
being imposed by the trial court. See Tenn. Const. art. VI, § 14.

                                         10
              The trial court found that three enhancement factors were applicable

to enhance the defendant’s sentences: (1) the defendant has a previous history of

criminal convictions or criminal behavior; (8) the defendant has a previous history

of unwillingness to comply with the conditions of a sentence involving release in the

community; and (16) the crime was committed under circumstances under which

the potential for bodily injury to a victim was great. Tenn. Code Ann. §§ 40-35-

114(1), -114(8), -114(16). The evidence in the record fully supports the trial court’s

use of these factors.



              The defendant’s history of criminal convictions and criminal behavior

is extensive. Although he was charged with a first offense in this case, his record

indicates that he was convicted of driving under the influence in 1989 and 1992.

The record also shows convictions for theft and arson, vandalism, public indecency,

and resisting arrest in addition to two previous convictions for driving on a revoked

license. The defendant failed to appear in court numerous times, and his probation

was revoked at least once. The defendant’s extensive criminal record and his

refusal to abide by the conditions of release into the community are more than

sufficient to justify the enhancement of his sentence based on factors (1) and (8).




              A preponderance of the evidence also supports the use of factor (16).

The defendant chose to drive a vehicle with defective steering while he was

intoxicated. The deputy testified that the truck was traveling far in excess of the

speed limit when it passed another vehicle at the top of a blind hill in a no-passing

zone. As the defendant turned into the driveway, he nearly lost control of the truck.

Such behavior on a public highway during the evening hours constitutes

circumstances under which there is great potential for bodily injury to a victim.



              The trial court found that the defendant lacked the potential for

rehabilitation, that maximum sentences were necessary to avoid depreciating the



                                         11
seriousness of the offenses and to provide an effective deterrent, and that the

maximum sentence was the least severe measure necessary to comply with the

sentencing principles. See Tenn. Code Ann. § 40-35-103 (1997). The record

supports these conclusions. A trial court is required to take into consideration all

relevant facts and circumstances in making its sentencing determination. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Therefore, the judge was required to

give some weight to the defendant’s two prior DUI convictions as well as his other

convictions.



               We find that the sentence imposed by the trial court is in the best

interests of both the defendant and the public. See Tenn. Code Ann. § 40-35-

103(1)(A), (B), (C). A lengthy period of incarceration in this instance is required both

to avoid depreciating the seriousness of the defendant’s criminal behavior and to

protect the public from further criminal conduct by the defendant.            Although

measures less restrictive than confinement have been tried repeatedly, the

defendant has demonstrated no inclination to rehabilitate himself. He has continued

to abuse alcohol and to disregard the law. The trial court did not err in imposing

maximum sentences for both convictions and in ordering the defendant to serve one

hundred percent of his DUI sentence and seventy-five percent of his conviction for

driving on a revoked license.



               We affirm the defendant’s convictions and the sentences as imposed

by the trial court.



                                                   __________________________
                                                   CURWOOD W ITT, Judge


CONCUR:



______________________________
JOSEPH M. TIPTON, Judge




                                          12
______________________________
JOE G. RILEY, Judge




                                 13
