             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE               FILED
                               JUNE 1999 SESSION
                                                          September 20, 1999

                                                          Cecil Crowson, Jr.
                                                         Appellate Court Clerk

STATE OF TENNESSEE,                 )
                                    )     C.C.A. No. 01C01-9811-CC-00474
      Appellee,                     )
                                    )     Marshall County
v.                                  )
                                    )     Honorable Charles Lee, Judge
WILLIAM D. DAVIS, JR.,              )
                                    )     (Failure to Appear)
      Appellant.                    )




FOR THE APPELLANT:                        FOR THE APPELLEE:

GREGORY D. SMITH                          PAUL G. SUMMERS
Contract Appellate Defender               Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040                     CLINTON J. MORGAN
(On Appeal)                               Assistant Attorney General
                                          425 Fifth Avenue North
DONNA L. HARGROVE                         Nashville, TN 37243-0493
District Public Defender
                                          WILLIAM MICHAEL McCOWN
ANDREW J. DEARING, III                    District Attorney General
Assistant Public Defender
105 South Main Street                     MICHAEL D. RANDLES
P. O. Box 1119                            Assistant District Attorney General
Fayetteville, TN 37334-1119               215 East College Street
(At Trial and On Appeal)                  P. O. Box 878
                                          Fayetteville, TN 37334-0878




OPINION FILED: _____________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                      OPINION

       On October 12, 1998, a Marshall County jury found the defendant, William D. Davis,

Jr., knowingly failed to appear for an August 13, 1998 trial in violation of Tenn. Code Ann.

§ 39-16-609 (1997). The trial court sentenced him to serve eleven months and twenty-nine

days in the county jail. This sentence was to run consecutively with his sentence for driving

with a revoked license, the charge for which he was to have been tried on August 13, 1998.

The defendant appealed as of right, listing two assignments of error, that the evidence was

insufficient for a finding of guilt and he received an excessive sentence.


       Based upon our review of this matter, we affirm the decision of the trial court.



                                  FACTS OF THE CASE


       The defendant was found guilty of driving on a revoked license in Lewisburg City

Court. He appealed to the Marshall County Circuit Court. On August 5, 1998, he was

present in circuit court to select a trial date. The trial court announced that he would be

tried at 8:30 a.m. on August 13, 1998. He signed an appearance bond and was released

from custody on August 5, 1998. However, on August 13, 1998, the defendant did not

appear for trial. A Lewisburg police officer, Larry Barker, received an arrest warrant for the

defendant, but could not locate him. The defendant turned himself in at the Lewisburg

police station on the morning of August 14, 1998, walking into the police station and

climbing the stairs unaided to surrender.



       In a court appearance on August 19, 1998, the defendant stated he was not in court

on August 13, 1998, because he was confused about the date he was to appear. He was

indicted for failure to appear pursuant to Tenn. Code Ann. § 39-16-609 (1997), and was

tried for this charge on October 12, 1998.



       At his October 12, 1998 trial, the defendant presented evidence that he had suffered

a back injury on August 11, 1998. Dr. John Brewer treated the defendant for neck or back

strain on August 11 and 12, 1998. Dr. Brewer prescribed pain medication and ordered him

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to stay in bed for twenty-four hours on August 12, 1998. However, Dr. Brewer testified that

the defendant’s injury and course of treatment would not have prevented his coming to

court the following day for the trial.



       Nancy Brown, the defendant’s mother, testified that when the defendant came to

her house on August 11 and 12, 1998, he had either walked or ridden his bicycle the

approximate two and one-half mile distance each way.



       Linda Perkins, the defendant’s sister, testified she took him to the Marshall Medical

Center on August 12, 1998. Perkins stated that the defendant was barely able to walk on

August 13, 1998. Perkins said she phoned the court clerk’s office the morning of August

13, 1998, to tell someone that he could not be in court. On cross-examination, Perkins

stated that she could not remember what she said or to whom she spoke. Perkins also

admitted she told Officer Barker she had not seen the defendant on August 14, 1998,

when in fact he was asleep in her home. After Perkins told the defendant that Officer

Barker was looking for him, the defendant went to the police station and turned himself in.



       The State presented evidence that the defendant did not mention a back injury or

that he required bed rest until his October 12, 1998 trial. The State also presented

evidence that the defendant was walking and moving around well on the morning of August

14, 1998, contradicting his claim of a debilitating back injury.



       After due deliberation, the jury found the defendant guilty of failure to appear. The

trial court sentenced him to the maximum term of eleven months and twenty-nine days,

and ordered that his sentence run consecutively with his sentence for the driving on a

revoked license conviction. The defendant timely appealed.



                                   DISCUSSION OF LAW

                              A. Sufficiency of the Evidence

       When a challenge is made to the sufficiency of the evidence, the standard for



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appellate review is whether, after considering the evidence in a light most favorable to the

State, 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, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). The defendant's burden of showing insufficiency is heavy, since all conflicts in

testimony are resolved in favor of the State, and the State is entitled to the strongest

legitimate view of the evidence as well as all reasonable or legitimate inferences that may

be drawn therefrom. State v. Burns, 979 S.W.2d 276, 287 (Tenn. 1998).



       To obtain a conviction for failure to appear, the State must prove the defendant

“[h]as been lawfully released from custody, with or without bail, on condition of subsequent

appearance at an official proceeding or penal institution at a specified time or place.”

Tenn. Code Ann. § 39-16-609(a)(2) (1997). A defense to a charge under this section is

that “[t]he person had a reasonable excuse for failure to appear at the specified time and

place.” Tenn. Code Ann. § 39-16-609(b)(1). Since the defendant admits he did not appear

for his August 13, 1998 trial date, the only question we must address is the reasonableness

of his excuse.



       Although the defendant claimed he had a debilitating back injury that prevented him

from appearing in court on August 13, 1998, the State presented evidence to rebut this

claim. Dr. Brewer testified he treated the defendant for neck or back strain, but that his

condition would not have prevented the defendant’s appearance in court on August 13.

The defendant’s sister gave conflicting and confusing testimony about reporting his injury

to the clerk’s office and about his activities on August 14, 1998. The State introduced

evidence that the defendant knew his court date was August 13, 1998 and that he did not

mention a back problem as being the reason for his nonappearance, when he did appear

before the trial court on August 19.



       A jury verdict, approved by the trial judge, accredits the State’s witnesses and

resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Taking the evidence in the light most favorable to the State, the evidence is



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sufficient to support the conviction.



                          B. Length and Manner of Sentence

       The defendant next challenges the trial court’s imposition of sentence. When an

accused challenges the length, range, or manner of service of a sentence, this Court has

a duty to conduct a de novo review of the sentence with the presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). In

conducting a de novo review of a sentence, the Court must consider: (a) the evidence, if

any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) any statutory mitigating or

enhancement factors; (f) any statement that the defendant made on his own behalf; and

(g) the potential or lack of 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). In felony cases, the presumption of correctness 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 166, 169 (Tenn. 1991).

However, the Supreme Court has held trial judges in misdemeanor cases are not required

to make specific findings of fact on the record regarding sentencing decisions. State v.

Troutman, 979 S.W.2d 271, 273-74 (Tenn. 1998).



       Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115 (1997). This

section allows consecutive sentencing at the discretion of the trial court if one of the seven

statutory criteria is found to exist by a preponderance of the evidence. The trial court found

that § 40-35-115 (2) (“The defendant is an offender whose record of criminal activity is

extensive”) applied in this case. In addition to the statutory requirements of § 40-35-115,

the Supreme Court has imposed three additional requirements for consecutive sentencing.

First, the trial court must find consecutive sentences are reasonably related to the severity

of the offenses committed. Second, the trial court must find consecutive sentences are

necessary to protect the public from further criminal conduct. Third, consecutive sentences



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must be consistent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d

933, 937-39 (Tenn. 1995).



       In the case sub judice, the trial court found one mitigating factor present, that

serious bodily injury was neither caused nor threatened. See Tenn. Code Ann. § 40-35-

113(1) (1997). The trial court also found two enhancement factors, a prior criminal history

and a history of unwillingness to comply with the conditions of a sentence involving release

in the community. See Tenn. Code Ann. § 40-35-114 (1) & (8) (1997).



       In fact, the defendant’s prior criminal history consists of more than twenty

misdemeanor and four felony convictions. He also committed an offense while on

probation. Based on this history, the trial court imposed a sentence of eleven months and

twenty-nine days to be served consecutively with the defendant’s sentence for driving on

a revoked license. Based on our de novo review with a presumption of correctness, we

find no error in the decision of the trial court.



       This assignment has no merit.



       For the foregoing reasons, we affirm the decision of the trial court.




                                            ________________________________________
                                            ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOE G. RILEY, JUDGE




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