        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 17, 2010 Session

                   STATE OF TENNESSEE v. TONY A. PITTS

               Direct Appeal from the Circuit Court for Wayne County
                        No. 14499     Jim T. Hamilton, Judge


                 No. M2009-01177-CCA-R3-CD - Filed July 22, 2010


The defendant, Tony Alton Pitts, was convicted of vehicular assault, a Class D felony, as
well as violations of the financial responsibility law and the vehicle registration law, both
Class C misdemeanors. On appeal, he argues that the evidence was insufficient to support
his convictions and that the trial court erred in denying him full probation and a restricted
license. After careful review, we affirm the judgments from the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which D AVID H. W ELLES
and R OBERT W. W EDEMEYER, JJ., joined.

A. Russell Larson and Leslie J. Fatowe, Jackson, Tennessee, for the appellant, Tony A. Pitts.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; T.
Michel Bottoms, District Attorney General; and Joel D. Dicus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

        On March 13, 2008, both the defendant, Tony Pitt, and Jesse Fett were injured in a
single vehicle collision, in which the defendant’s vehicle ran off the road at a curve while
traveling in excess of sixty miles per hour in a forty-five mile per hour zone. The
investigating officer of the Tennessee Highway Patrol found reason to believe that the
defendant was intoxicated and had been operating the vehicle prior to the accident. The
officer also determined that the defendant was driving with open containers of alcohol in the
vehicle and without proof of insurance, and that the license tag on defendant’s vehicle was
registered to a different vehicle.
        On September 5, 2008, the defendant was indicted for vehicular assault, driving under
the influence, violation of open container law, violation of registration law, and violation of
the financial responsibility law. On January 22, 2009, after a trial by jury, the defendant was
convicted of vehicular assault and violations of the registration and financial responsibility
laws. He was sentenced to two years for vehicular assault, suspended to probation after
service of sixty days. He was sentenced to thirty days for violation of the vehicle registration
law, all suspended. The trial court also initially stated that the defendant would serve a
suspended sentence for violation of the financial responsibility law. However, the judgment
in the record correctly reflects that violation of this law does not carry a sentence of
confinement. T.C.A. § 55-12-139(c). The judgments in the record are silent as to whether
the sentences were ordered to run consecutively or concurrently. Tennessee Rule of Criminal
Procedure 32 provides that a sentence shall run concurrently when a judgment is silent as to
concurrent or consecutive sentencing. The sentencing judge also denied the defendant’s
motion to grant a restricted license.

      The defendant now timely appeals. After careful consideration, we reject the
defendant’s arguments and affirm the defendant’s convictions and sentences on all counts.

                                           Analysis

        The defendant argues that the evidence was insufficient to support his convictions for
vehicular assault, violation of the financial responsibility law, and violation of the vehicle
registration law. 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). A jury
verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts
in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the
State is entitled to the strongest legitimate view of the evidence and all legitimate or
reasonable inferences which may be drawn therefrom. Id. This court must affirm any
conviction if the evidence, viewed under these standards, was sufficient for any rational trier
of fact to have found the essential elements of the offense beyond a reasonable doubt. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State
v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.
App. 1996).

       The defendant challenges the sufficiency of the evidence supporting his conviction
for vehicular assault, claiming that he was not the driver of the vehicle at the time of the
accident. However, considerable evidence supports the jury’s conclusion that he was, in fact,
the vehicle’s operator. At trial, the trooper who responded to the accident testified that the
defendant told him he was driving the automobile when the accident occurred. The trooper’s
vehicle was equipped with a camera, and, because the camera was operating when the

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trooper responded to the accident, the jury was able to hear the defendant’s admission. The
defendant’s friend, Jesse Fett, stated for the first time on the day of trial that he was operating
the vehicle when the accident occurred. However, his testimony was contradicted by his
earlier written accident report in which he stated that the defendant had picked him up on the
night of the accident and by his statement that he did “not wish to press charges against [the
defendant].” The jury was free to credit the earlier statements by both the defendant and
Jesse Fett to the effect that the defendant was driving the vehicle when the accident occurred
and to discredit their later statements to the contrary. Viewing this evidence in the light most
favorable to the State, we conclude that the evidence was sufficient to convict the defendant
of vehicular assault.

        The defendant also contends that the evidence was insufficient to support his
conviction for violating the financial responsibility law. Tennessee law requires persons
operating an automobile on a state roadway to carry documentation of a valid insurance
policy. Tennessee Code Annotated section 55-12-139(c) provides that it is a Class C
misdemeanor to fail to provide evidence of financial responsibility in the form of an
insurance policy or cash bond. The law also states that on or before the defendant’s court
date, he may submit evidence that he was in compliance with the financial responsibility law
at the time of the offense and have the charge of failure to provide evidence of financial
responsibility dismissed.

        Trooper Carl Nutt of the Tennessee Highway Patrol, who responded to the defendant’s
accident, testified that the defendant showed no proof of insurance on the vehicle at the time
of the accident or afterward. The jury was free to discredit the defendant’s testimony that he
had no proof of insurance because his vehicle was newly purchased and the proof had not yet
arrived and that he was operating the automobile under a “grace period” from his previous
automobile insurance policy. At trial, the defendant did not introduce any evidence of
insurance coverage to support this claim. In the absence of such proof, the jury was free to
credit the officer’s testimony over that of the defendant. Consequently, we find the evidence
sufficient to support his conviction.

        Next, the defendant contends that the evidence was insufficient to support his
conviction for violation of the automobile registration law. Tennessee Code Annotated
section 55-4-101 requires the registration of all motor vehicles operating on Tennessee streets
or highways. Tennessee Code Annotated section 55-4-108 requires that a certificate of
registration be carried in the vehicle and that it must be displayed on demand of any officer.
Tennessee Code Annotated section 55-4-110 further requires that a registration plate be
attached to the rear of the motor vehicle. The defendant argues that the evidence was
insufficient to support the conviction for violation of the vehicle registration law because he
had just obtained the automobile in question on the day of the accident. The defendant

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claims the right to a thirty-day grace period for registration, which he states is provided by
Tennessee Code Annotated section 55-4-221(c)(4). However, that code section provides a
reprieve through the issuance of a temporary registration plate and does not permit an
individual to simply switch license plates from one car to another in anticipation of proper
registration in the future. At trial, the defendant acknowledged that the registration plate
attached to the vehicle at the time of the accident was, in fact, registered to a different
vehicle. The defendant did not offer proof of registration and acknowledged that the vehicle
was not registered. Because the registration law states that, “as a condition precedent to the
operation of any motor vehicle upon the streets or highways of this state, such vehicle shall
be registered . . . ,” the evidence was sufficient to support his conviction.

       The defendant also alleges error in his sentencing, claiming that the trial court erred
by imposing a sentence without specifically finding enhancing or mitigating factors and by
failing to properly consider sentencing alternatives. An appellate court’s review of
sentencing is de novo on the record with a presumption that the trial court’s determinations
are correct. T.C.A. § 40-35-401(d) (2006). The Sentencing Commission Comments to this
section note that, on appeal, the burden is on the defendant to show that the sentence is
improper. If the trial court followed the statutory sentencing procedure, made findings of
fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court may not disturb the sentence even if a different result was preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        While the trial court did not expressly consider aggravating or mitigating factors at
the sentencing hearing, the State did not submit a notice of enhancement factors, and the trial
court was free to find that none existed. Because the trial court imposed the minimum
sentence available for each conviction, the defendant has no cause to complain regarding the
trial court’s failure to expressly consider mitigating factors. The trial court could not grant
any sentence less than the minimum, regardless of the number of aggravating or mitigating
factors found.

       The defendant can only complain of the trial judge’s decision to impose an alternative
sentence of sixty days followed by probation rather than full probation. Trial judges have a
wide range of discretion when considering alternative sentences. An especially mitigated or
standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary. T.C.A. § 40-
35-102(6). However, this presumption is not available to a defendant who commits the most
severe offenses, has a criminal history showing clear disregard for the laws and morals of
society, and has failed past efforts at rehabilitation. Id. § 40-35-102(5); State v. Fields, 40
S.W.3d 435, 440 (Tenn. 2001). The court should also examine the defendant’s potential for

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rehabilitation or lack thereof when considering whether alternative sentencing is appropriate.
T.C.A. § 40-35-103(5). Sentencing issues must be decided in light of the unique facts and
circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987). A defendant has the burden of establishing his suitability for full probation, even if
the defendant is entitled to be considered a favorable candidate for alternative sentencing.
See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). No criminal defendant
is automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559
(Tenn. 1997).

        Here, the trial court did not specifically state on the record its reason for denying full
probation. However, the record fully supports the trial court’s decision. At the sentencing
hearing, probation officer Dwight Davis testified that the defendant had been convicted of
DUI in 1994. Before the sentencing hearing, probation officer Davis and another officer
visited the defendant’s home and observed a gun cabinet. When they informed the defendant
that he could no longer possess weapons because he had been convicted of a felony, the
defendant became extremely agitated. The officer recalled that the defendant complained
about the restriction, and the officers decided it would be best for them to leave. The
defendant told them that he was convicted of a “misdemeanor felony” and could keep his
guns. In addition, in the presentence report, the defendant denied responsibility for the
accident and asserted that the assistant district attorney had a grudge against him.

        When a defendant has a previous conviction for which he was granted probation and
has committed the same offense again, a judge is free to find that imposing full probation for
the second offense will provide insufficient deterrence to future illegal activity. This is
especially true where the defendant denies responsibility for his actions and, instead, alleges
that his situation is the result of the State having a grudge against him. In this case, the judge
was also free to consider that the defendant had previously intimidated his probation officers
and interfered with their attempts to enforce the law. This activity, in its totality, paints a
picture of the defendant as someone who would not be best rehabilitated by mere supervision
on full probation. His prior period of probation did not deter him from driving under the
influence and causing bodily injury to himself and another. Therefore, we affirm the
sentence of split confinement with a period of sixty days of service and the balance on
probation.

      Finally, we reject the appellant’s argument that the trial court erred in finding that he
was not eligible for a restricted license following his conviction for vehicular assault.
Tennessee Code Annotated section 39-13-106(c) provides that a driver who is convicted of
vehicular assault by intoxication, as set forth in Tennessee Code Annotated section 55-10-
403(d)(2), is explicitly prohibited from being issued a drivers license for one year.
Therefore, the trial court did not err in denying the defendant’s request for a restricted

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license.

                                       Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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