         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 10, 2002

                 STATE OF TENNESSEE v. TOMMY R. POWELL

                Direct Appeal from the Circuit Court for Williamson County
                        No. II-132-801    Timothy L. Easter, Judge



                     No. M2001-02955-CCA-R3-CD - Filed April 24, 2002


Defendant was found guilty of violating the state speeding law by the Fairview City Court and, on
appeal, was again found guilty by the Circuit Court of Williamson County. In this appeal, defendant
contends he was denied his constitutional right to trial by jury, and the evidence was insufficient to
support his conviction. Although we find the evidence sufficient to support the conviction, we
conclude defendant was deprived of his right to trial by jury. We reverse and remand for a new trial.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                        Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E.
GLENN, JJ., joined.

Tommy R. Powell, Bell Buckle, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        Defendant was cited on June 25, 2001, to the Fairview City Court for driving 70 miles per
hour in a 50 mile per hour speed zone on State Highway 96. That court has concurrent jurisdiction
with the general sessions court to hear criminal matters. See Tenn. Code Ann. § 6-21-501(b). He
was found guilty by the Fairview City Court, and he perfected an appeal to the Circuit Court of
Williamson County. The Circuit Court of Williamson County also found him guilty of speeding and
remanded the matter to the Fairview City Court for “dismissal upon completion of driving school.”
See Tenn. Code Ann. § 55-10-301(b)(1). This appeal followed.
                                             RIGHT TO JURY TRIAL

         Defendant first contends he was deprived of his constitutional right to trial by jury. We must
agree.

A. Procedural History

        Defendant asserts he requested a jury trial when he first appeared before the Fairview City
Court, and that court denied his request.1 Although we do not have a transcript of that proceeding,
a written waiver of trial by jury does not appear in the technical record. Upon being found guilty of
speeding by the Fairview City Court, defendant properly perfected an appeal to the Circuit Court of
Williamson County. Although he made no written request for jury trial upon perfecting the appeal,
the record does reveal he orally requested trial by jury when he appeared in circuit court. The circuit
court denied his request, finding defendant could not be fined more than fifty dollars ($50.00) nor
be incarcerated for speeding. The trial court then conducted a bench trial and found the defendant
guilty of speeding.

B. Analysis

         “[W]here a fine of more than $50.00 or any confinement of the accused may be imposed, the
right to jury trial under the Tennessee constitution is well-established.” State v. Dusina, 764 S.W.2d
766, 768 (Tenn. 1989) (emphasis added); see also State v. Lemacks, 996 S.W.2d 166, 169 (Tenn.
1999); Tenn. Const. Art. 1, § 6 and Art. VI, § 14. In Dusina, the court recognized the state
constitutional right to trial by jury is more expansive than the federal constitutional right, the latter
of which guarantees the right to a jury trial only where the fine exceeds fifty dollars ($50.00) or
confinement of more than six (6) months. 764 S.W.2d at 768 (citing Duncan v. Louisiana, 391 U.S.
145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)).

        Where a misdemeanor is tried in the general sessions court or a city court having state
jurisdiction and the defendant is convicted, the defendant has a right to appeal to the circuit or
criminal court with a trial de novo. Tenn. R. Crim. P. 5(c)(2). Such an appeal to the circuit or
criminal court includes the right to trial by jury, provided a demand is made at the time of the filing
of the appeal. Tenn. Code Ann. § 27-3-131. However, there is no right to trial by jury for “small
offenses.” Tenn. R. Crim. P. 5(b). A “small offense” is one in which “the punishment cannot
exceed a fine of $50.00 and which carries no confinement in a jail or workhouse.” Dusina, 764
S.W.2d at 768.

      Speeding pursuant to the general statutes in Tennessee is punishable as a Class C
misdemeanor. See Tenn. Code Ann. § 55-10-301(a). A Class C misdemeanor carries punishment



         1
          If this is true, the city court should not have heard this matter since, as we later determ ine in this op inion , this
was not a “small offense.” See Ten n R. Crim . P. 5(c)(2).

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of not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both. Tenn. Code
Ann. § 40-35-111(e)(3).

        The state, while recognizing that speeding is a Class C misdemeanor, contends it is a “small
offense.” Since a Class C misdemeanor carries the possibility of confinement, it cannot be a small
offense. Dusina, 764 S.W.2d at 768; see also Op. Tenn. Att’y Gen. No. 00-192, 2000 Tenn. AG
LEXIS 196 (Dec. 21, 2000) (opining that a defendant charged with a Class C misdemeanor has a
constitutionally protected right to a jury trial that may be relinquished only by a valid written
waiver). Defendant was entitled to a trial by jury.

        The state’s reliance upon Dusina is misplaced. Dusina held there was no right to trial by jury
for a charge under a special speeding statute dealing with traffic on interstate highways, which only
provided for a fine from two dollars ($2.00) to fifty dollars ($50.00) with no authorization for
confinement. 764 S.W.2d at 767. The court specifically stated that ordinary speeding violations
carried possible punishment of a jail term under Tenn. Code Ann. § 55-10-301 and were not “small
offenses.” Id. at 768.

         We acknowledge that in order to secure a jury trial in a criminal matter on an appeal from
general sessions court or a city court having state jurisdiction, the statute requires that the demand
for jury trial be made at the time of filing the appeal. Tenn. Code Ann. § 27-3-131(b). However,
this statute contemplates that the defendant has first waived in writing his right to a jury trial in the
general sessions court or the city court having state jurisdiction; otherwise, the defendant should not
have been tried on the merits in that court. State v. Jarnigan, 958 S.W.2d 135, 137 (Tenn. Crim.
App. 1997) (holding defendant charged with violating the motor vehicle window tinting law, a Class
C misdemeanor, was entitled to trial by jury); State v. William R. Brinkley, C.C.A. No. 01C01-9103-
CR-00070, 1991 Tenn. Crim. App. LEXIS 842, at *3 (Tenn. Crim. App. Oct. 11, 1991, at Nashville).
Thus, where the record does not reflect that the defendant waived his right to a jury trial in the
general sessions court or the city court, the failure to make a written request for jury trial at the time
of filing the appeal does not waive trial by jury. Jarnigan, 958 S.W.2d at 137.

        Here, defendant’s notice of appeal to the circuit court did not contain a demand for jury trial,
although he orally requested a jury trial when he appeared in court. Nevertheless, the record does
not reflect any written waiver of the right to trial by jury in the city court. Accordingly, defendant’s
failure to request a jury trial in his notice of appeal to the circuit court does not bar relief. We,
therefore, must reverse the judgment of the trial court and remand for a trial by jury.


                              SUFFICIENCY OF THE EVIDENCE

       Defendant contends the evidence was insufficient to support the finding of guilt of speeding.
Should we find this issue has merit, double jeopardy would bar a retrial. However, we find the
evidence sufficient to sustain the finding of guilt.



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        On appeal, we must determine “whether, after viewing 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, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979). Accordingly, we will not reweigh the evidence, but instead, we will
presume that the trier of fact has resolved all conflicts in the testimony and drawn all reasonable
inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness
credibility are resolved by the trier of fact. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
Although the defendant was convicted in a bench trial, the findings of the trial judge carry the same
weight as a jury verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).

       At trial the arresting officer testified he clocked the defendant driving 70 miles per hour in
a 50 mile per hour speed zone. Although he acknowledged that his radar did not reflect a reading
when viewed by the defendant, the officer explained that he did not lock his radar on the reading.

        The defendant testified he viewed his speedometer just prior to being clocked, and he was
going 48 miles per hour. The defendant stated there were four (4) cars between the officer’s vehicle
and his own at the time he was allegedly clocked. The defendant questioned the radar reading at the
scene and asked to view the reading. Defendant stated the officer showed him the dash-mounted
unit, and it was turned off. The defendant denied going over 50 miles per hour.

        The issue of guilt turned upon the credibility of the witnesses. The trial court obviously
found the officer to be credible. We are without authority to find the evidence insufficient under
these circumstances.2


                                                    CONCLUSION

        The judgment of the trial court is reversed, and this case is remanded to the trial court for trial
by jury.




                                                                   ___________________________________
                                                                   JOE G. RILEY, JUDGE

         2
            The trial p ro ceed in g w as p reserv ed on a C D w ith both audio and video ca pa bilitie s. W e have viewed and
listened to the trial testimony. Although we observed and heard the same testimony as did the trial judge, the findings
of the trial judge depended upon the credibility of the witnesses. Our standard of review does not allow us to resolve
questions of credibility. Hav ing conc luded a rational trier of fact cou ld find g uilt, our inqu iry en ds. But cf. State v.
Bine tte, 33 S.W.3d 215, 217 (Tenn. 2000) (holding that where findings of fact at a suppression hearing are based on
evidence that does not involve credibility, an appellate court reviews the record without any presum ption of correctness).



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