           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                           MAY 1998 SESSION
                                                 FILED
                                                    July 21, 1998

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 02C01-9708-CC-00301
           Appellee,            )
                                )     LAKE COUNTY
VS.                             )
                                )     HON. J. STEVEN STAFFORD,
MELVIN BOYD, JR.,               )     JUDGE
                                )
           Appellant.           )     (Motor Vehicle Habitual Offender)



FOR THE APPELLANT:                   FOR THE APPELLEE:


G. STEPHEN DAVIS                     JOHN KNOX WALKUP
District Public Defender             Attorney General & Reporter
P. O. Box 742
Dyersburg, TN 38025-0742             GEORGIA BLYTHE FELNER
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                      C. PHILLIP BIVENS
                                      District Attorney General
                                      P. O. Drawer E
                                      Dyersburg, TN 38024




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              Following a jury trial, the defendant was found guilty of driving after having

been declared a motor vehicle habitual offender pursuant to T.C.A. § 55-10-616. The trial

court sentenced him to two years in the Tennessee Department of Correction. He now

appeals as of right, challenging the sufficiency of the evidence to support his conviction

and arguing that the trial court erred in failing to consider and order an alternative

sentence. Finding no merit in the defendant’s arguments, we affirm his conviction and

sentence.



              Ms. Brenda Pruitt testified that on June 3, 1996, she was involved in a traffic

accident with the defendant in Lake County, Tennessee. The defendant offered her one

hundred dollars ($100) if she would not call the police since he did not have a valid

driver’s license. Ms. Pruitt refused the money and told the defendant she was going to

call the police. The defendant immediately left the scene of the accident, claiming he

needed to go to his mother’s house. As he left, Ms. Pruitt copied the defendant’s license

plate number. When the police arrived at the scene of the accident, Ms. Pruitt told the

officer what happened and gave him a description of the defendant, a description of the

red truck he was driving, and the defendant’s license plate number. An investigation into

the license plate number revealed that the truck was registered to the defendant. Both

the truck and the defendant matched Ms. Pruitt’s descriptions. Moreover, Ms. Pruitt

positively identified the defendant at trial.



              One of the defendant’s sons, Eddie, testified that the defendant had sold

the truck in question to him prior to June 3, although he was unsure of the date.

According to Eddie’s testimony, when he bought the truck from the defendant, he



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replaced the defendant’s license plate with a temporary tag, but he could not explain how

the license plate number Ms. Pruitt copied traced ownership of the truck that hit her to the

defendant. The defendant, his wife, and another of his sons, Shane, also testified at trial

that the defendant had sold his truck to his son prior to June 3, but none of them could

agree upon the date the defendant supposedly sold the truck, nor could they produce any

documentation evidencing the sale or transfer of title. Moreover, Shane and Eddie

testified that on June 3, the defendant had been in Lawrenceburg, Tennessee, helping

them roof a house.       Eddie testified that the truck in question was with them in

Lawrenceburg, but Shane testified that the truck was not at the work site on June 3.



              The defendant first argues that the evidence presented at trial is insufficient

to find him guilty of operating a motor vehicle after having been declared a motor vehicle

habitual offender and having his driver’s license revoked. This Court will not disturb a

verdict of guilt for lack of sufficient evidence unless the defendant illustrates how the facts

contained in the record and any inferences which may be drawn from the facts are

insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty

beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A

guilty verdict rendered by the jury and approved by the trial judge accredits the testimony

of the State’s witnesses, and a presumption of guilt replaces the presumption of

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



              “Any person found to be an habitual offender under the provisions of this

part who thereafter is convicted of operating a motor vehicle in this state while the

judgment or order of the court prohibiting such operation is in effect commits a Class E

felony.” T.C.A. § 55-10-616(b). The State and the defendant agreed to introduce into

evidence a copy of a 1990 order declaring the defendant to be a motor vehicle habitual



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offender and revoking his driver’s license as a result. Thus, the only issue at trial was

whether the defendant operated a motor vehicle in Tennessee on June 3, 1996. See id.



              Here, there was sufficient evidence for the jury to conclude that the

defendant drove a motor vehicle in Tennessee on June 3. Ms. Pruitt positively identified

the defendant as the man who was driving the red truck that hit her car in Lake County,

Tennessee, on June 3. The license plate number she reported to the police was traced

to the defendant. Although the defendant’s and his family’s testimony was, for the most

part, contradictory to the finding of guilt, it was also quite inconsistent. The jury obviously

discredited their testimony, which is its prerogative. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). This issue lacks merit.



              The defendant next argues that the trial court erred in denying alternative

sentencing. The burden of showing that the sentence is improper is upon the appealing

party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. When a defendant

complains of his or her sentence, we must conduct a de novo review with a presumption

of correctness. T.C.A. § 40-35-401(d). This presumption, however, “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).



              Because the defendant does not fall within the parameters of T.C.A.

§ 40-35-102(5) and is a standard offender convicted of a Class E felony, he “is presumed

to be a favorable candidate for alternative sentencing options in the absence of evidence

to the contrary.” T.C.A. § 40-35-102(6). In this case, even though the trial judge did not

expressly state that he began with the presumption that the defendant was a favorable



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candidate for alternative sentencing, his findings make it clear that the State overcame

the presumption by presenting ample evidence of the defendant’s long criminal history,

which includes prior convictions for driving with a revoked license and driving under the

influence; the defendant’s unwillingness to comply with the conditions of his prior release

in the community; and the defendant’s lack of potential for rehabilitation. Thus, we

conclude that a sentence of two years’ confinement was appropriate for the defendant.

See State v. Toney L. Moore, C.C.A. No. 01C01-9609-CC-00392, Williamson County

(Tenn. Crim. App. filed October 16, 1997, at Nashville).



              In sum, the evidence in the record is sufficient to support the defendant’s

conviction and sentence. Accordingly, the trial court’s judgment is affirmed.




                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
PAUL G. SUMMERS, Judge



______________________________
THOMAS T. W OODALL, Judge




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