            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          FEBRUARY 1998 SESSION
                                                         March 18, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *                     Appellate Court Clerk
                                   C.C.A. # 01C01-9705-CC-00199

      Appellee,               *    FRANKLIN COUNTY

VS.                           *    Hon. Buddy D. Perry, Judge

RICHARD D. SAWYER,            *    (DUI, Third Offense and Driving on a

      Appellant.              *    Revoked License, Second Offense)




For Appellant:                     For Appellee:

Robert S. Peters                   John Knox Walkup
Swafford, Peters & Priest          Attorney General and Reporter
100 First Avenue, Southwest
Winchester, TN 37398               Ruth Anne Thompson
(at trial and on appeal)           Counsel for the State
                                   425 Fifth Avenue North
Timothy Priest                     Cordell Hull Building, Second Floor
Swafford, Peters & Priest          Nashville, TN 37243-0493
100 First Avenue, Southwest
Winchester, TN 37398               Stephen M. Blount
(at sentencing)                    Assistant District Attorney General
                                   324 Dinah Shore Boulevard
                                   Winchester, TN 37398




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

               The defendant, Richard D. Sawyer, was convicted of driving under the

influence, third offense, and driving on a revoked license, second offense. The trial

court imposed concurrent sentences of eleven months and twenty-nine days for

driving under the influence and ninety days for driving on a revoked license. See

Tenn. Code Ann. §§ 55-10-401(a) and 55-50-504(a)(1). The defendant was fined

$1,050.00.



               In this appeal of right, the defendant challenges the sufficiency of the

evidence and argues that the sentence was excessive. We affirm the judgment of

the trial court.



               At 1:16 A.M. on April 4, 1995, Cowan Assistant Police Chief Tony

Bean observed a brown Ford LTD veer several times outside of its line of traffic.

Officer Bean, accompanied by Officer Chris Fann, stopped the vehicle and

determined that the defendant, the only occupant, was the driver. When the

defendant stepped out of the car, Officer Bean smelled alcohol and could see vomit

on the defendant's pants and shirt. The defendant explained that he had been

playing pool at the Pit Stop when he became ill and decided to go home. When

asked whether he needed an ambulance, the defendant declined. Officer Bean then

administered four field sobriety tests, all of which, in the officer's opinion, the

defendant failed.



               Later, Officer Bean learned that the defendant's driver's license had

been revoked and that he had been issued a restricted license. When asked about

this, the defendant admitted that he was not allowed to be driving after 1:00 A.M.

The restricted license was for transportation to and from work only.


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              The defendant declined a blood alcohol test. At trial, Officer Bean

recalled that the defendant explained that he had not taken his medicine and that he

had a physical ailment that made it difficult for him to stand. There was a medicine

bottle found in the front seat of the car. Officer Bean remembered that both the

vomit and the breath of the defendant smelled of alcohol.



              Officer Fann recalled seeing the defendant's car weave back and forth

across the yellow and white line before Officer Bean turned on the blue lights and

siren. He testified that he observed each of the field sobriety tests. Officer Fann

also came to the conclusion that the defendant was too intoxicated to be driving.



              The defendant, a security guard at Shaw Industry, testified that he had

a restricted driver's license at the time of his arrest which allowed him to drive to and

from work. He claimed that his hours varied at his place of employment and that he

was under the care of a physician for both depression and epileptic seizures. He

explained that he had been prescribed Perphenazine which he was required to take

each day for his epilepsy.



              The defendant insisted that he had not consumed any alcohol prior to

his arrest and had stopped at the Pit Stop only to play pool and drink Coca-Cola.

The defendant testified that he became ill and that a patron from Chicago, who was

quite intoxicated, tried to assist him but threw up on him and spilled whiskey on him.

The defendant stated that he was on his way to his place of employment to find his

medicine when he was stopped by the police. He claimed that his seizure had

passed before he began to operate his car and that his driving might have appeared

erratic because the officers were following too closely behind. He claimed that he

began to have another seizure at the time Officer Bean began to administer the field


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sobriety test.



                 Defense witness Bill Williams, who arrived at the Pit Stop between

7:00 and 8:00 P.M. prior to the arrest, testified that he did not see the defendant

drink alcohol on the night in question. When W illiams offered the defendant a drink,

the defendant responded, "I can't, Bill, I'm on medication." Williams, who left

between 10:30 and 11:00 P.M., recalled that there was a man from Chicago at the

Pit Stop who was intoxicated. He testified that the defendant was not under the

influence of alcohol when last seen.



                 After the jury found the defendant guilty of driving under the influence

and driving on a revoked license, the state presented documents establishing his

prior convictions on each of the offenses. In consequence, the trial judge concluded

that the defendant was guilty of driving under the influence, third offense, and

driving on a revoked license, second offense.



                 In this appeal, the defendant complains that driving from a

"recreational establishment to his place of employment for the purpose of procuring

needed medicine," was "within the scope of his restricted [driver's] license." He

insists that there was insufficient evidence of any consumption of alcohol on his

part. He claims that the corroborated "story about the man from Illinois who was

drunk, irrational, and possessed with a propensity to propel vomit on the helpful and

unwary" was an adequate explanation of the incriminating circumstances.



                 On appeal, however, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the


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witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the evidence are matters entrusted exclusively to the jury as the triers of fact.

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A guilty verdict,

approved by the trial judge, accredits the testimony of the state's witnesses and

resolves all conflicts in the evidence favorable to the theory of the state. State v.

Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).



              Two law enforcement officers were of the opinion that the defendant

was intoxicated. Clearly, the defendant was driving his automobile on a revoked

license and after the time authorized by his restricted use. The jury chose the

accredit the testimony of the prosecution witnesses and reject that of the defense.

That was their prerogative. In our view, a rational trier of fact could have found the

essential elements of each of the crimes beyond a reasonable doubt. Tenn. R. App.

P. 13(e). The evidence of the defendant's guilt more than satisfied the prescribed

standard. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).



              The defendant also complains that the sentence was excessive. He

argues that the trial court should have imposed the minimum penalty of one hundred

twenty days as prescribed by the legislature. We disagree.



              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). Misdemeanor sentences must be specific and in accordance

with the principles, purposes, and goals of the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902

S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to


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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 the full 100% of his sentence. Id. 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

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 term of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e). 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). The governing

statute is designed to provide the trial court with 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, 832 (Tenn. Crim. App. 1994).



              The state established a significant criminal history on the part of the

defendant. His violation of the terms of his restricted license indicates an

unwillingness to comply with conditions of release. While one of the convictions

here was for driving under the influence, third offense, this is actually his fourth such

offense over a thirteen-year period. Apprised that the defendant and his wife had

medical problems, the trial court imposed the maximum sentence for driving under

the influence but ordered the sentence for driving on a revoked license to be


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concurrently served. The primary basis for the imposition of a sentence above the

minimum for driving under the influence was the defendant's lengthy history of

drinking and driving.



              In our view, the trial court addressed the appropriate factors in

considering the sentence to impose. The defendant has failed to rebut the

presumption of the correctness of the sentence.



              The judgment is, therefore, affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
William M. Barker, Judge



_____________________________
Curwood Witt, Judge




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