         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                       DECEMBER 1998 SESSION
                                                         FILED
                                                              May 27, 1999

                                                        Cecil Crowson, Jr.
                                                       Appellate Court Clerk
STATE OF TENNESSEE,            )
                               ) C.C.A. No. 02C01-9805-CR-00129
      Appellee,                )
                               ) Shelby County
V.                             )
                               ) Honorable W. Fred Axley, Judge
                               )
STANLEY O. ABELL,              ) (Disorderly Conduct, Assault)
                               )
      Appellant.               )




FOR THE APPELLANT:                FOR THE APPELLEE:

ROBERT L. J. SPENCE, JR.          JOHN KNOX WALKUP
KAREN R. CICALA                   Attorney General & Reporter
67 Madison Avenue, Suite 200
Memphis, TN 38013                 PETER M. COUGHLAN
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  WILLIAM L. GIBBONS
                                  District Attorney General

                                  ROSEMARY ANDREWS
                                  Assistant District Attorney General
                                  Criminal Justice Center, Third Floor
                                  201 Poplar Avenue
                                  Memphis, TN 38103




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

         The defendant, Stanley O. Abell, was tried by a jury and convicted of

assault and disorderly conduct. The trial court sentenced him to eleven months

and twenty-nine days’ confinement for the assault and to thirty days’ confinement

for the disorderly conduct. The defendant appeals, challenging both his

convictions and sentences. We AFFIRM the judgment of the trial court.



                                   BACKGROUND

         On September 3, 1996, the defendant went to the Willow Oaks

Elementary School to pick up his daughter from her fifth-grade class. Despite

signs instructing visitors to sign-in at the office, the defendant went directly to his

daughter’s classroom and demanded that she be allowed to go with him. His

daughter’s teacher, Josephine Leatherwood, advised the defendant that,

because it was prior to the end of classes, school policy required that he get a

dismissal slip from the office before she could let his daughter leave. The

defendant retorted that it was his daughter and that Leatherwood could not stop

him from taking her. Nevertheless, when Leatherwood insisted, the defendant

started toward the office. After a short distance, however, he turned back toward

the classroom. Watching this, and already suspecting trouble, Leatherwood

immediately sent her students, except the defendant’s daughter, to another

room.



         When the defendant’s daughter saw him returning, she began to cry. She

told Leatherwood that she was supposed to go to an after-school program, after

which she was to be picked up by her mother. Hearing this, Leatherwood

decided to take the defendant’s daughter to the office and address the situation

there.



         Leatherwood put her arm around the defendant’s daughter and started

toward the door of her classroom. At that point, the defendant entered the


                                          -2-
classroom and began yelling that Leatherwood could not stop him from taking his

daughter. Still crying, his daughter dropped her book bag, jumped behind

Leatherwood, and, holding to her waist, began screaming that she was not

supposed to go with the defendant.



       Leatherwood testified that the defendant then grabbed her left arm and

dug his fingernails into her. Leatherwood calmly told the defendant that he was

hurting her and told him to remove his hands. Instead, the defendant seized her

left hand and began bending her fingers back, all the while shouting that

Leatherwood could not stop him from taking his daughter. Apparently still

unsatisfied, the defendant then twisted Leatherwood’s arm behind her back and

repeatedly stomped her open-toe shoe and foot.



       At that point, another teacher, Barbara McCloskey, and the school

custodian, Anthony Smith, came to assist Leatherwood. When McCloskey

entered the room, the defendant’s daughter ran to her, grabbed her around the

waist, and moved with her into the hall. Smith reminded the defendant, who

continued to behave belligerently, that he was in a school and told him to be

quiet. The defendant retorted that Smith should “mind his own business” and

told him, “I’m a professor, and you can’t tell me what to do . . . . You’re just a

custodian.”



       Eventually the defendant gained control of Monique and led her to his car,

which, as further demonstration of his arrogant disregard for the law and others,

he had parked in a handicap spot. During the disturbance, however, the school

principal had called the police. Officers arrived and arrested the defendant

before he could leave.




                                         -3-
                       SUFFICIENCY OF THE EVIDENCE

       The defendant asserts that the evidence at trial was insufficient to support

his conviction of either assault or disorderly conduct. When an accused

challenges the sufficiency of the evidence, this Court must determine whether,

after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of a crime beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee

is entitled to the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn therefrom. See State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state

accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Moreover, a guilty verdict removes the presumption of innocence enjoyed by

defendants at trial and replaces it with a presumption of guilt. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the

sufficiency of the evidence bears the burden of illustrating to this Court why the

evidence is insufficient to support the verdict. See State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996).



       The defendant has failed to carry this burden. The disorderly conduct

statute provides, “(a) A person commits an offense who, in a public place and

with intent to cause public annoyance or alarm: (1) Engages in fighting or in

violence or threatening behavior . . . . (b) A person also violates this section who

makes unreasonable noise which prevents others from carrying on lawful



                                         -4-
activities.” Tenn. Code Ann. § 39-17-305(a)(1), (b). The defendant argues that

the state failed to produce evidence of either “intent,” as required by subpart

(a)(1), or “unreasonable noise that prevents others from carrying on lawful

activities,” as required by subpart (b).



       We disagree. With regard to the evidence of intent, it is clearly

established that a trier of fact may infer the element of intent from circumstantial

evidence. See, e.g., State v. Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App.

1994). The state presented overwhelming evidence of the defendant’s truculent

behavior, and this evidence was clearly sufficient for a reasonable trier of fact to

infer that the defendant intended to cause public annoyance or alarm. As to

subpart (b), the school custodian testified that he told the defendant to be quiet,

reminding him that he was in a school. And, the state’s proof indicated that at

least six school staff members responded to the disturbance by the defendant.

This evidence was sufficient for the jury to reasonably conclude that the

defendant created “unreasonable noise that prevent[ed] others from carrying on

lawful activities.” Thus, we find the evidence sufficient as to either provision of

the above cited statute.



       As to his assault conviction, the defendant does not assert that the state

failed to produce competent evidence of any statutory element. See Tenn. Code

Ann. § 39-13-101(1)-(2). Rather, he merely reassert his version of events--for

example, that he only “gently touched” Ms. Leatherwood’s arm--and argues that

the jury’s verdict was against the weight of the evidence. The defendant thereby

asks this Court to reweigh the evidence presented at trial. This we cannot do.

The credibility of witnesses and the weight to be accorded their testimony are

matters reserved to the trier of fact; the jury was entitled to credit the state’s

proof and discredit that of the defendant. This issue is without merit.



                                JUDICIAL CONDUCT



                                           -5-
       The defendant next argues that certain comments of the trial judge, made

in the presence of the jury, were inappropriate and prejudicial. The defendant

testified at trial but was consistently evasive of the state’s questions on cross-

examination. Because of this evasiveness, the trial judge admonished the

defendant to answer the state’s questions directly. On another occasion, the

court questioned the defendant to clarify contradictory responses. In his brief to

this Court, the defendant quotes these exchanges from the trial transcript. His

entire argument, then, is that “[s]uch statements are detrimental to the defendant

in that it leaves [sic] the jury with the impression that the judge is ruling that the

defendant is not being candid in his testimony. The judge in effect is impeaching

the defendant’s testimony.”



       The defendant cites no authority in support of this argument. See Tenn.

R. App. P. 27(a)(7) (requiring citation to relevant authority in appellant brief).

This issue is, therefore, waived. See Tenn. Ct. Crim. App. R. 10(b); State v.

Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987).



       Notwithstanding waiver, we have examined the trial transcript, and we find

nothing inappropriate in the trial court’s comments. A trial judge possesses

broad discretion in controlling the course and conduct of trial, as such discretion

is necessary to conduct an orderly proceeding. “[T]he propriety, scope, manner

and control of testimony . . . is within the sound discretion of the trial court, which

will not be reversed absent an abuse of that discretion.” State v. Elroy D.

Kahanek, No. 01C01-9707-CC-00298 (Tenn. Crim. App. filed June 30, 1998, at

Nashville) (citing State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn. 1994)). We

find no abuse of discretion. This issue is without merit.




                              SENTENCING FACTORS


                                          -6-
       The appellant next complains that his sentences are excessive. When an

accused challenges the length or manner of service of a sentence, it is the duty

of this Court to conduct a de novo review on the record “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). In conducting our review, we must

consider (1) the evidence, if any, received at the trial and the sentencing hearing;

(2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) any statutory mitigating or enhancement factors; (6) any statement

made by the accused in his own behalf; and (7) the potential or lack of potential

for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant

carries the burden of showing that his sentence is improper. See Tenn. Code

Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d

391, 395 (Tenn. Crim. App. 1996).



       Misdemeanor sentencing is designed to provide the trial court with

continuing jurisdiction and a great deal of flexibility. A misdemeanant is not

entitled to a presumption of minimum sentence. See State v. Seaton, 914

S.W.2d 129, 135 (Tenn. Crim. App. 1995). Further, the trial court is not limited

to consideration of the statutory enhancement and mitigating factors in

determining the appropriate sentence, but should examine misdemeanor

offenses in light of the circumstances of the offense. See State v. Brannon, No.

03C01-9508-CR-00233 (Tenn. Crim. App. filed Apr. 3, 1996, at Knoxville).

Nevertheless, the trial court must consider the statutory enhancement and

mitigating factors and the purposes and principles of the Sentencing Reform Act

when determining the portion of a sentence to be served in confinement. See

Tenn. Code Ann. § 40-35-302; State v. Creasy, 885 S.W.2d 829, 832 (Tenn.

Crim. App. 1994).




                                        -7-
       In the present case, two enhancement factors are applicable: The offense

involved more than one victim, see Tenn. Code Ann. § 40-35-114(3); and the

defendant committed the offense while on school property, see Tenn. Code Ann.

§ 40-35-114(17). The trial court recognized no mitigating factors; however, the

defendant proposes that the following apply:

       “The defendant’s criminal conduct neither caused nor
       threatened serious bodily injury,” Tenn. Code Ann. § 40-34-
       113(1);

       The defendant’s criminal history is not extensive;

       “The defendant, although guilty of the crime, committed the
       offense under such unusual circumstances that it is unlikely
       that a sustained intent to violate the law motivated the
       criminal conduct,” Tenn. Code Ann. § 40-34-113(11); and

       The defendant exhibited remorse.


       Although we hesitate to characterize Leatherwood’s injuries as “serious,”

the defendant’s actions clearly threatened serious injury to both Leatherwood

and others. Thus, this factor is not applicable.



       As for the defendant’s criminal history, we agree with the trial court that

the defendant’s relative minor record may be insufficient to warrant sentence

enhancement. Nevertheless, neither does this record merit mitigation. The

defendant’s presentence report indicates one conviction for driving on a revoked

license and an unprosecuted bad check charge. Of greater significance to this

Court, the defendant’s ex-wife testified at his sentencing hearing regarding

several previous violent encounters with the defendant arising from a custody

dispute between the couple. She stated that on one occasion, police officers

had to remove the defendant from her premises after he attempted to break into

her home. On another occasion, the defendant took the couple’s two children

and barricaded himself in his home until police facilitated the return of the

children to Ms. Abell. Finally, she testified that she had sworn out a complaint

against the defendant for allegedly attempting to run over her with his car.




                                         -8-
These incidents clearly indicate a history of criminal behavior and, therefore,

preclude application of this factor in mitigation of the defendant’s sentence.



       Neither do we find that the defendant committed his offenses “under such

unusual circumstances that it is unlikely that a sustained intent to violate the law

motivated the criminal conduct.” The unusual circumstance to which the

defendant would attribute his behavior is his ongoing custody dispute with his ex-

wife. However, as noted above, the record indicates that the defendant has

reacted violently during several previous incidents involving the custody of his

children. The continuing nature of this custody dispute, combined with the

defendant’s consistently aggressive responses, hardly suggests that this

circumstance is unusual in his case. Moreover, the instant offense extended

over a significant period of time and continued through, by all accounts,

remarkably calm responses from Leatherwood and others school staff members.

We cannot conclude that the defendant’s offenses were motivated by anything

other than a sustained intent to terrorize members of the school staff.



       Finally here, the defendant asserts that the trial court erred in failing to

recognize his alleged remorse as a mitigating factor. Our examination of the

record reveals no significant expression of remorse by the defendant. To the

contrary, the defendant has never even admitted that his actions were wrongful.

He stated only that he would abide the jury’s decision as to his guilt.



       For these reasons, we find none of the proposed mitigating factors

applicable. The trial court did not err in sentencing the defendant to the

maximum punishment for each of his offenses.



                          ALTERNATIVE SENTENCING

       We next examine the defendant’s challenge to the trial court’s denial of

alternative sentencing. We begin by inquiring whether the defendant is entitled



                                          -9-
to be presumed a favorable candidate for alternative sentencing. The defendant

argues that because one convicted of a class C, D, or E felony is presumed a

favorable candidate, see Tenn. Code Ann. § 40-35-102(6), this presumption

should logically extend to one convicted of a misdemeanor. There is case law to

support this argument. See, e.g., State v. Boyd, 925 S.W.2d 237, 245 (Tenn.

Crim. App. 1995). However, there is also case law to the contrary. See State v.

Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995) (“The presumption is

limited in scope to an accused who is convicted of a Class C, D or E felony. It

does not apply to an accused convicted of a misdemeanor.”). Albeit in

parenthetical dicta, the Tennessee Supreme Court recently cited the Williams

holding in State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). Moreover, the

reasoning of Troutman is persuasive. Addressing whether a trial court must

record findings in misdemeanor sentencing, the Troutman Court stated, “[T] he

legislature has indicated the ability to clearly mandate specific findings on the

record in felony sentencing. Had the legislature intended this practice in

misdemeanor sentencing, it could have so stated.” Id. at 274. Similarly, we

conclude, the legislature has indicated the ability to clearly mandate a

presumption of favorable candidacy for alternative sentencing for class C, D, or

E felons. Had the legislature intended this presumption to apply to

misdemeanants, it could have so stated. We therefore read the statute for what

it says, not what might be inferred, and conclude that the defendant is not

entitled to a presumption of favorable candidacy for alternative sentencing.



       Moreover, even if the presumption generally applied, we would find it

rebutted in this case. The trial court found that confinement is necessary to

avoid depreciating the seriousness of the offense. See Tenn. Code Ann. §

40-35-103(1)(B). To impose confinement based on the seriousness of the

offense, “‘the circumstances of the offense as committed must be especially

violent, horrifying, shocking, reprehensible, offensive, or otherwise of an

excessive or exaggerated degree,’ and the nature of the offense must outweigh



                                        -10-
all factors favoring a sentence other than confinement.” State v. Bingham, 910

S.W.2d 448, 454 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818 S.W.2d

370, 374-75 (Tenn. Crim. App. 1991)). Although neither assault nor disorderly

conduct is inherently horrifying, violent, etc., relative to many other offenses, “the

circumstance of the offense[s] as committed” were clearly “especially

reprehensible” and “of an excessive or exaggerated degree.” Further, although

the defendant is entitled to consideration of factors, such as his community

service, that tend to favor alternative sentencing, we conclude that the

seriousness of the defendant’s offenses outweighs all such factors.



       Finally here, we consider separately the trial court’s denial of probation, as

that analysis differs from the denial of alternative sentencing generally. While

the defendant is statutorily eligible for probation and must automatically be

considered, "the defendant is not automatically entitled to probation as a matter

of law." Tenn. Code Ann. § 40-35-303(b) sentencing comm’n cmts; see State v.

Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). Rather, the defendant

has the burden of establishing his suitability for probation. See Tenn. Code Ann.

§ 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).



       In determining whether to grant or deny probation, the trial courts are

directed to consider the circumstances of the offense; the defendant's criminal

record, social history, and present condition; the need for deterrence; and the

best interest of the defendant and the public. See State v. Grear, 568 S.W.2d

285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.

1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The

defendant's credibility, or lack thereof, is also an appropriate consideration and

reflects on a defendant's potential for rehabilitation. See State v. Dowdy, 894

S.W.2d 301, 306 (Tenn. Crim. App. 1994). And, “[i]t is well settled that [a

defendant’s] lack of candor may serve as the sole basis for denying probation.”

State v. James T. Bingham, No. 01C01-9604-CC-00159 (Tenn. Crim. App. filed



                                         -11-
Dec. 15, 1997, at Nashville) (citing State v. Dykes, 803 S.W.2d 250 (Tenn. Crim.

App. 1990)).



       The trial court duly considered these factors, and the evidence,

particularly the defendant’s lack of candor and credibility, supports the trial

court’s decision.



                          CONSECUTIVE SENTENCING

       Finally, the defendant argues that the trial court erred in ordering that his

sentences run consecutively. The state correctly concedes that consecutive

sentencing is not warranted in this case, as none of the statutory criteria is

applicable. See Tenn Code Ann. § 40-35-115. Nevertheless, although the trial

court stated at the sentencing hearing that the sentences would run

consecutively, the judgment sheet as ultimately completed imposes concurrent

service. We therefore find no error, but we clarify that the defendant’s

sentences are to be served concurrently.



                                   CONCLUSION

       The judgment of the trial court is AFFIRMED.




                                           _____________________________
                                            JOHN EVERETT W ILLIAMS, Judge


CONCUR:




(SEE CONCURRING OPINION)
GARY R. WADE, Presiding Judge




_____________________________
THOMAS T. W OODALL, Judge

                                         -12-
