            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                            JANUARY 1998 SESSION
                                                           April 14, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,             *   C.C.A. # 03C01-9704-CR-00127

             Appellee,          *   HAMBLEN COUNTY

VS.                             *   Hon. James E. Beckner, Judge

ALICE COLLINS,                  *   (Driving Under the Influence, Third
                                    Offense; Driving on a Revoked License,
             Appellant.         *   Second Offense)

                                *




For Appellant:                      For Appellee:

Ethel P. Laws, Attorney             John Knox Walkup
Office of the Public Defender       Attorney General and Reporter
Third Judicial District
1609 College Park Drive             Janis L. Turner
Box 11                              Counsel for the State
Morristown, TN 37813-1618           Criminal Justice Division
                                    Cordell Hull Building, Second Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    Victor Vaughn
                                    Assistant District Attorney General
                                    510 Allison Street
                                    Morristown, TN 37814




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Alice Collins, was found guilty of driving under the

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

court imposed concurrent eleven-month, twenty-nine-day sentences with release

eligibility after service of seventy-five percent of the sentences. The trial court

imposed a fine of $1,110.00 for driving under the influence and $500.00 for driving

on a revoked license. The defendant's driver's license was suspended for five years

and her vehicle was conditionally forfeited.



              In this appeal of right, the defendant claims that the evidence was

insufficient and that the sentence was excessive. We find no error and affirm the

judgment of the trial court.



              At approximately 7:30 P.M. on June 15, 1996, Mark Moffitt, who was

accompanied by his girlfriend, Stacy Spencer, was driving his vehicle on Montross

Road in Morristown when he encountered an older model Chevrolet truck

approaching in the opposite direction. Moffitt testified at trial that he had to drive

into a yard to avoid being struck by the truck, which was "swerving all over the road."

Moffitt stated that the only occupant of the truck was "an older woman [wearing] a

red shirt" and drinking from a can. He observed the truck travel only a short

distance before being driven onto a curb and parked.



              At that point, Moffitt drove about one block to the Spencer residence

where he called 911. Moffitt returned to the scene about ten minutes later, met an

officer, and learned that the driver was still in the car. Moffitt identified the

defendant as the driver.




                                             2
              At trial, Ms. Spencer provided a similar account. She described the

driver as "an older-like lady, and she was tipping her beer can, and she had on a red

shirt." She recalled that the truck, after passing the Moffitt vehicle, drove through a

stop sign and barely avoided striking two telephone poles and two trucks. Ms.

Spencer testified that the defendant, who was positively identified at trial, was the

only occupant of the vehicle.



              Officer Phil Hurst of the Morristown Police Department was the first to

arrive at the scene. When he approached the truck, the defendant was lying on the

passenger's side of the vehicle in a "highly intoxicated" condition. He recalled that

she was dressed in a red shirt. Although the officer found no keys, he determined

that the truck would start without a key. He described the defendant as smelling of

alcohol with slurred speech. He testified that the defendant was unable to perform

any of the field sobriety tests he administered. Officer Hurst testified that prior to her

arrest, the defendant claimed that she had not been driving the truck. He stated that

he had not seen the defendant's niece, Gwen Hayes, at the scene of the arrest.



              Officer Mark Campbell testified that both Moffitt and Ms. Spencer

made positive identifications of the defendant as the driver of the truck at the scene.

It was his opinion that the defendant was under the influence of alcohol.



              Although the defendant signed the implied consent provided by the

police, she refused a breathalizer examination. Police were able to determine that

the defendant's driver's license had been revoked.



              At trial, the defendant acknowledged that she was the owner of the

truck and was intoxicated at the time of her arrest. She denied, however, that she


                                            3
was the driver. The defendant claimed that her niece, Gwen Hayes, had taken her

shopping and had left her in the vehicle when Ms. Hayes' father and brother stopped

them and took her to her son, who had become ill. The defendant testified that the

truck was parked at the residence of a friend, Dot Calfee. While acknowledging that

the truck would operate without the use of keys, the defendant denied that she had

ever driven the vehicle in that manner. She claimed that Ms. Hayes had the keys at

the time of the arrest. The defendant testified that the last thing she remembered

was "shopping at the mall"; she only vaguely recalled her niece saying she intended

to leave. The defendant claimed that both she and her niece were wearing red

blouses on the date of her arrest; she acknowledged passing out in the truck.



                Gwen Hayes testified that she had taken the defendant shopping at

Wal-Mart on the date of the offense. She recalled that she learned from her sister-

in-law, who worked at Wal-Mart, that her son had become ill and that her husband

was looking for her. She claimed that she met the defendant's ex-husband, James,

at a market and he agreed to take the defendant home. Ms. Hayes contended that

she met her father near a friend's residence and that he drove her away from the

scene. She explained that she might have "swerved a little bit" along the way when

the defendant "fell over on my lap." Ms. Hayes claimed that she took the keys to the

truck with her. She testified that she first learned of the arrest when James

telephoned her and told her that he had pulled into the parking lot just as the police

officers had.



                On appeal, 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 witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are


                                             4
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, resolves all evidentiary conflicts in favor of the theory of the state. State v.

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



              Here, the jury chose to accredit the testimony of the prosecution

witnesses and reject that offered by the defendant and Ms. Hayes. That was their

prerogative. Eyewitnesses identified the defendant as the driver. There was both

direct and circumstantial corroborative evidence which fully supports the verdict. In

our view, a rational trier of fact could have found the essential elements of the

crimes of driving under the influence and driving on a revoked license beyond a

reasonable doubt. The evidence of guilt satisfies the standard prescribed in Tenn.

R. App. P. 13(e). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).



              Next, the defendant contends that an "inequality exists in that [she]

received more than the minimum" sentence. She contends that the sentence is not

the least severe measure necessary. When a challenge is made 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 court

from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d).



              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


                                            5
-210. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              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

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. Palmer, 902

S.W.2d 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,


                                            6
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).



              The minimum possible sentence was one hundred twenty days. See

Tenn. Code Ann. § 55-10-403(a)(1). In this instance, the trial court imposed a

greater sentence due to defendant's prior criminal history which included several

alcohol-related offenses and two felony offenses for larceny. The trial court

observed that in 1994, the defendant was convicted of driving under the influence, a

public intoxication conviction in 1995, and a second driving under the influence

offense in 1996; the defendant was on probation when these offenses occurred.

The trial court found the circumstances of this offense to be aggravated because the

defendant forced another vehicle off the road and almost struck two other vehicles.

See Tenn. Code Ann. § 40-35-114(1), (8), (13), and (16). The trial court reviewed

each of the principles of sentencing and concluded that confinement was necessary

to restrain the defendant because of her long, prior history of criminal conduct and

to order a sentence of sufficient length in order to avoid depreciating the

seriousness of the crime. The trial court also pointed out that measures less

restrictive than confinement had been unsuccessfully applied to the defendant.



              We concur with this assessment. In our view, the sentence imposed

was appropriate. Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge




                                           7
CONCUR:



_____________________________
William M. Barker, Judge



_____________________________
Curwood Witt, Judge




                                8
