        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE             FILED
                        JULY SESSION, 1997          September 26, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,           )   C.C.A. NO. 03C01-9611-CC-00405
                              )
     Appellee,                )
                              )   SEVIER COUNTY
                              )
V.                            )
                              )   HON. WILLIAM R. HOLT, JR., JUDGE
BOBBY TEASTER,                )
                              )
     Appellant.               )   (DUI)



FOR THE APPELLANT:                FOR THE APPELLEE:

EDWARD CANTRELL MILLER            JOHN KNOX WALKUP
District Public Defender          Attorney General & Reporter

SUSANNA LAWS THOM AS              CLINTON J. MORGAN
Assistant Public Defender         Assistant Attorney General
102 Mims Avenue                   2nd Floor, Cordell Hull Building
Newport, TN 37821-3614            425 Fifth Avenue North
                                  Nashville, TN 37243-0943

                                  ALFRED C. SCHMUTZER, JR.
                                  District Attorney General

                                  G. SCOTT GREEN
                                  Assistant District Attorney General
                                  125 Court Avenue, Room 301-E
                                  Sevierville, TN 37862



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                               OPINION

      The Defendant, Bobby Teaster, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure.         Following a jury trial in the

Criminal Court of Sevier County, the Defendant was convicted of driving under

the influence, first offense. The trial court sentenced Defendant to serve eleven

(11) months, twenty-nine (29) days, with fifty percent (50%) minimum service

prior to release. The sentence was ordered to run consecutive to a prior ten (10)

year penitentiary sentence for bribery and subornation of perjury in Case No.

5675 in Sevier County. Defendant raises two issues on appeal: (1) that the

evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt

of first offense DUI, and; (2) that the trial court erred by ordering consecutive

sentencing. W e affirm the judgment of the trial court.



                   I. SUFFICIENCY OF THE EVIDENCE



      W hen an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosection, 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). This standard is applicable to findings of guilt predicated upon

direct evidence, circumstantial evidence or a combination of direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). On appeal, the State is entitled to the strongest legitimate view of

the evidence and all inferences therefrom . State v. Cabbage, 571 S.W.2d 832,



                                       -2-
835 (Tenn. 1978).     Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



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

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

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W .2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge accredits the State’s witnesses and resolves all

conflicts in favor of the State. Grace, 493 S.W .2d at 476.



      At approximately 11:00 p.m. on January 18, 1994, Rene Kendall and Jeff

W arner, both of whom are Pigeon Forge police officers, were on patrol and drove

into the parking lot of the Gold Star gas station and market. The Gold Star sits

at an intersection of two public roads. They immediately saw Defendant walking

unsteadily from a truck at the gas pump to the inside of the store.    The officers

stopped and watched him while noting that he had left his truck running. A few

minutes later, Defendant walked unsteadily back to his truck and got inside the

vehicle. The officers pulled up to the truck where Defendant was sitting by

himself. Officer Kendall requested Defendant to get out of the truck. Kendall

smelled alcohol on Defendant, and noticed that he was unsteady getting out of

the truck. The officers and Defendant went back into the store because it was

cold. Inside the store, Defendant agreed to submit to field sobriety tests.

                                        -3-
      First, Defendant failed the alphabet test. Officer Kendall testified that

Defendant slurred his words and could not say the alphabet in the correct order.

Second, he failed the stand-on-one foot test. Officer Kendall observed that

Defendant was unable to control his balance. Third, Defendant failed the heel

-to-toe test. According to Officer Kendall, Defendant could not keep his balance

while attempting to walk a straight line. Officer Kendall determined Defendant to

be extremely impaired. At this point Defendant was placed under arrest for DUI,

and Officer Kendall asked him to empty his pockets. Defendant removed a glass

vial of white powder from his coat pocket.        Officer Kendall then searched

Defendant and removed a bag of white powder from his shirt pocket and a tube

pipe from his back pocket. The powder was sent to the crime lab, and it tested

positive for cocaine. Defendant said the cocaine was for his personal use.



      Defendant was taken to the police station where Officer Kendall asked

Defendant to submit to a blood test for drugs and alcohol. Defendant refused the

blood test but said he would take an intoximeter test.          Neither test was

administered. The proof at trial was that Defendant had previously pled guilty to

misdemeanor drug charges in the Trial Justice Court of Sevier County regarding

the cocaine and drug paraphernalia found in his possession at the time of his

arrest for DUI.




      Officer W arner testified that on January 18, 1994, he was on patrol with

Officer Kendall. He saw the Defendant staggering to his truck. Officer Warner

was present during the field sobriety tests given to Defendant, and in his opinion,

Defendant was “highly under the influence of either alcohol and/or drugs.”

                                        -4-
      The defense proof consisted of the testimony of Iva McMahan, the

Defendant’s aunt. She testified that on January 18, 1994, the Defendant called

her from the Gold Star market for assistance because he had run out of gas in

his vehicle. She and her husband picked Defendant up and took him to his truck

on W alden’s Creek. After refueling the truck, they then followed Defendant back

to the Gold Star where Defendant stopped and they went back home. She

testified that Defendant did not appear to be drunk, and that she did not smell any

alcohol on him. She also did not remember at what time she last saw Defendant

on that night.



      Tennessee Code Annotated section 55-10-401(a) provides in part as

follows:


      (a) It is unlawful for any person to drive or to be in physical control
      of any automobile . . . on any of the public roads and highways of
      the state, . . . or any other premises which is generally frequented
      by the public at large, while: (1) Under the influence of any
      intoxicant, marijuana, narcotic drug, or drug producing stimulating
      effects on the central nervous system ; . . . .



      First, from the testimony at trial, Defendant was clearly in physical control

of his truck. The officers observed Defendant get out of his running truck, enter

the store, and then return to his truck moments later with the engine still running.

See State v. Lawrence, 849 S.W .2d 761 (Tenn. 1993). Second, he was clearly

on premises frequented by the public at large. The Gold Star gas station and

market is located in a busy part of Pigeon Forge. It logically follows that the Gold

Star is an establishment frequented by the public. Third, Defendant was clearly

under the influence of an intoxicant. Based on Officer Kendall’s experience and

observations, he determined Defendant to be “very impaired” and drunk. Officer

                                        -5-
W arner further testified that he observed Defendant to be “highly under the

influence of either alcohol and/or drugs.” A rational jury could have concluded

that the Defendant’s appearance, his staggering walk, his slurred speech, and his

failure to adequately perform each of the field sobriety tests demonstrated that

the Defendant was under the influence of an intoxicant.



      In viewing the evidence in the light most favorable to the State, the

evidence was sufficient to support a conviction for first offense, DUI. This issue

is without merit.



                          II. SENTENCING



      Defendant argues that the trial court erred in ordering consecutive

sentencing. Defendant was convicted on September 26, 1995 of bribery and

subornation of perjury and was sentenced to ten (10) years in prison. (Case No.

5675, Sevier County). He was serving that sentence when brought before the

trial court and convicted of DUI. The DUI sentence was ordered to be served

consecutively to the sentences for bribery and subornation of perjury.




      W hen an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presum ption 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

                                       -6-
166, 169 (Tenn. 1991). There are, however, exceptions to the presumption of

correctness. First, the record must demonstrate that the trial court considered

the sentencing principles and all relevant facts and circum stances. Id. Second,

the presumption does not apply to the legal conclusions reached by the trial court

in sentencing. Third, the presumption does not apply when the determinations

made by the trial court are predicated upon uncontroverted facts. State v. Sm ith,

898 S.W.2d 742, 745 (Tenn. Crim. App. 1994), perm. to appeal denied, id. (Tenn.

1995).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the facts and principles set out under the sentencing law, and

that the trial court’s findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).



      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, & -210; see State v. Smith, 735 S.W .2d 859, 863 (Tenn. Crim. App.

1987).




                                        -7-
      Upon review of the record, we find that the trial court did not explicitly set

forth its reasoning in ordering consecutive sentencing, and hence, failed to follow

proper statutory sentencing procedure. Therefore, review by this court is de novo

without a presumption of correctness.



      Upon request by the Defendant, the trial court proceeded to sentence

Defendant immediately following the jury verdict. The State submitted facts in its

argument during the hearing regarding the Defendant’s extensive criminal history,

and defense counsel admitted that the criminal history recited by the State was

“essentially” as the prosecutor had subm itted.      This record reflects that the

Defendant has been convicted of bribery, subornation of perjury, possession with

intent to sell or deliver Schedule IV drugs, simple possession of cocaine,

possession with intent to sell or deliver m arijuana, possession with intent to sell

or deliver cocaine, and another DUI conviction. Both of Defendant’s arrests for

DUI and the conduct which led to the bribery and subornation of perjury charges

were committed by Defendant while he was on probation and/or parole from prior

felony convictions.



             During the relatively brief sentencing hearing, the trial court did not

state on the record how he had applied the principals of sentencing found in

Tennessee Code Annotated section 40-35-103, failed to submit specific findings

of fact as required by Tennessee Code Annotated section 40-35-209(c), and did

not state reasons for the decision to order consecutive sentencing. However,

pursuant to Tennessee Code Annotated section 40-35-115, we find that the

record supports by a preponderance of the evidence that Defendant is an

offender whose record of criminal activity is extensive. Tenn. Code Ann. § 40-

                                        -8-
35-115(b)(2). Furthermore, we find from the record as a whole that consecutive

sentencing is necessary to protect the public from Defendant and is reasonably

related to the severity of the offenses committed by Defendant.            State v.

W ilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).



       The Defendant on appeal relies upon the trial court’s failure to specifically

set forth facts to justify a consecutive sentence in support of his argument that

this court should reverse the trial court and order the sentence to be served

concurrently to the prior felony convictions. While the trial court may have failed

to specify certain facts to support the consecutive sentencing, we find that the

record provides the facts necessary to affirm the trial court’s action.



       Finding the evidence sufficient to support the conviction, and that there is

no error in ordering the sentence to be served consecutively to the prior

convictions for bribery and subornation of perjury, we affirm the judgment of the

trial court.




                                 ____________________________________
                                 THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. W ELLES, Judge


___________________________________
JOHN K. BYERS, Senior Judge



                                        -9-
