         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 18, 2007

              STATE OF TENNESSEE v. VON ARLEN MCKINNEY

                 Direct Appeal from the Criminal Court for Hamblen County
                          No. 06CR063     John Dugger, Jr., Judge



                   No. E2007-00747-CCA-R3-CD - Filed December 29, 2008


The defendant, Von Arlen McKinney, was convicted of driving under the influence (DUI), third
offense; driving on a revoked license, fourth offense; possession of drug paraphernalia; and violation
of the implied consent law. He was sentenced to eleven months and twenty-nine days at seventy-five
percent for his DUI offense; eleven months and twenty-nine days for driving on a revoked license,
to run concurrent to the DUI; eleven months and twenty-nine days for possession of drug
paraphernalia, to run concurrent to the other sentences; and eleven months and twenty-nine days for
violation of the implied consent law, with five days to run consecutive to his other sentences, for a
total effective sentence of eleven months and thirty-four days. On appeal, the defendant argues that
the evidence was insufficient and that the sentence imposed was excessive. After careful review,
we affirm the judgments from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
J.C. MCLIN , JJ., joined.

Greg W. Eichelman, District Public Defender, and D. Clifton Barnes, Assistant Public Defender (on
appeal), and Jefferson Fairchild, Rogersville, Tennessee (at trial), for the appellant, Von Arlen
McKinney.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and Kimberly Morrison, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         The defendant was arrested for driving under the influence after a Morristown Police
Department officer observed him staggering toward the door of a convenience store after exiting his
vehicle. Earlier, the officer had received a dispatch to be on the lookout for a small, black sport
utility vehicle (SUV) after 9-1-1 received a phone call that the driver of the SUV was drunk. The
officer saw a black SUV carrying three people. He followed the vehicle into the parking lot of a
convenience store. The officer saw two passengers wearing seat belts in the vehicle. The office also
observed a person, the defendant, outside the vehicle “staggering pretty bad” and approached him.
He asked the defendant to come to him, and the defendant complied.

        The officer observed that the defendant’s eyes were bloodshot, his speech was slurred, he
“reeked of alcohol,” and he staggered as he walked toward the officer. The defendant acknowledged
that he had been drinking alcohol and smoking marijuana but claimed “that was a long time ago.”
The officer waited for back-up to arrive before he conducted the field sobriety test and, while they
waited, he asked the defendant where he had been and where he was going. He said that the vehicle
was registered to the defendant and that the defendant never denied being the driver of the vehicle.
The officer attempted to administer the field sobriety test after the back-up officer arrived, but the
defendant was unable to complete it and, thus, refused further testing. The defendant was arrested
after he refused to submit to a blood alcohol test. A search of the vehicle revealed a pipe with drug
residue. While transporting the defendant to jail, the officer learned that the defendant’s driver’s
license was revoked. The defendant signed the implied consent form, refusing to submit to any
sobriety tests at the police station.

       In sentencing the defendant, the trial court noted that it considered that every defendant
should be punished by the imposition of a sentence justly deserved in relation to the seriousness of
the offense. The court also noted that confinement was necessary to avoid depreciating the
seriousness of the offense and, thus, sentenced the defendant to a total effective sentence of eleven
months and thirty-four days for the four convictions.

                                                 Analysis

        The defendant argues that the evidence was insufficient to support his convictions of DUI,
third offense, and driving on a revoked license, fourth offense. He argues that the officer made
contradictory statements during the hearing on a motion to suppress and at trial and that the officer’s
changed statements persuaded the jury to convict the defendant. The record reflects that the
defendant failed to object or raise this issue in his motion for new trial; therefore, this issue is subject
to waiver under Tennessee Rule of Appellate Procedure 3(e).

       Notwithstanding the defendant’s failure to comply with the rules, there was sufficient
evidence presented at trial to support the defendant’s convictions. The officer testified that he
followed the defendant’s vehicle into a convenience store parking lot and observed the defendant
staggering toward the store with the vehicle’s driver’s side door open and its engine running.

        In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury
verdict 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 reasonable inferences which may be drawn therefrom. State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003). Moreover, a guilty verdict removes the presumption of innocence
which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493



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S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of
guilt. Id.

        Where sufficiency of the evidence is challenged, the relevant question for an appellate court
is 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 or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

       Here, we conclude that sufficient evidence was produced at trial for a trier of fact to find the
defendant guilty beyond a reasonable doubt of driving under the influence. The offense of driving
under the influence is codified at Tennessee Code Annotated section 55-10-401 and makes it:

        unlawful for any person to drive or to be in physical control of any automobile . . .
        driven 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[.]

T.C.A. § 55-10-401.

         In State v. Butler, 108 S.W.3d 845, 850 (Tenn. 2003), the Tennessee Supreme Court adopted
a totality of the circumstances test for the purpose of determining whether a person was in physical
control of a motor vehicle or driving a motor vehicle. The court specifically stated that the relevant
factors the trier of fact should take into account include:

        the location of the defendant in relation to the vehicle, the whereabouts of the
        ignition key, whether the motor was running, the defendant’s ability, but for his
        intoxication, to direct the use or non-use of the vehicle, or the extent to which the
        vehicle itself is capable of being operated or moved under its own power or
        otherwise.

Id.

        Based upon the factors set forth by the supreme court, a reasonable trier of fact could
conclude that the defendant was in physical control of the vehicle to support his conviction of
driving under the influence. The defendant argues that the officer provided inconsistent testimony
at a hearing on a motion to suppress and at trial. However, any inconsistency was resolved by the
jury in favor of the State by virtue of the guilty verdict.




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        Next, the defendant argues that he was sentenced improperly for the offense of driving while
his license was revoked. He contends that the trial court improperly sentenced him to serve eleven
months and twenty-nine days for his conviction because it is the maximum sentence under the law.
He argues that his crime “was no crime of such huge dimensions that justice would demand such a
sentence imposed on the defendant.”

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides that the trial court shall impose a specific sentence consistent with the purposes and
principles of the 1989 Criminal Sentencing Reform Act. State v. Palmer, 902 S.W.2d 391, 394
(Tenn. 1995). Generally, a percentage of not greater than seventy-five percent of the sentence should
be fixed for a misdemeanor offender; however, a DUI offender may be required to serve one hundred
percent of his sentence. Palmer, 902 S.W.2d at 393-94. In determining the percentage of the
sentence, the trial court must consider enhancement and mitigating factors as well as the legislative
purposes and principles related to sentencing. Id. One convicted of a misdemeanor, unlike one
convicted of a felony, is not entitled to a presumption of a minimum sentence. State v. Humphreys,
70 S.W.3d 752, 768 (Tenn. Crim. App. 2001).

       A trial court is allowed greater flexibility in setting misdemeanor sentences than felony
sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). No separate sentencing
hearing is required, though the court must give the defendant a reasonable opportunity to be heard
regarding the length and manner of service of the sentence. T.C.A. § 40-35-302(a).

        The sentence must be specific and in accordance with the principles, purposes, and goals of
the Sentencing Act. T.C.A. § 40-35-302(b); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).
A determinate sentence should be set with a percentage of not greater than seventy-five percent to
be served in confinement. T.C.A. § 40-35-302(d). The trial court should consider the enhancement
and mitigating factors when calculating the percentage of the sentence to be served in confinement.
Id.; State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

        Here, the defendant has not demonstrated that the trial court failed to follow the principles
of sentencing or that the sentence was excessive. The trial court found two enhancement factors to
be applicable and the sentence to be within the appropriate range. The trial court’s findings are
supported by the evidence; therefore, we affirm.

                                            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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