            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE              FILED
                                MARCH 1997 SESSION             May 13, 1997

                                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STATE OF TENNESSEE,                    )
                                       )    C.C.A. NO. 03C01-9604-CC-00140
            Appellee,                  )
                                       )    HANCOCK COUNTY
VS.                                    )
                                       )    HON. JAMES E. BECKNER,
RAYMOND O. BROWN,                      )    JUDGE
                                       )
            Appellant.                 )    (Vandalism)



FOR THE APPELLANT:                          FOR THE APPELLEE:


GREG EICHELMAN                              JOHN KNOX WALKUP
Public Defender                             Attorney General & Reporter

D. CLIFTON BARNES                           JANIS L. TURNER
Asst. Public Defender                       Counsel for the State
1609 College Park Dr., Box 11               450 James Robertson Pkwy.
Morristown, TN 37813-1618                   Nashville, TN 37243-0493

                                            C. BERKELEY BELL
                                            District Attorney General

                                            FLOYD W. RHEA
                                            Asst. District Attorney General
                                            North Court St.
                                            Sneedville, TN 37869




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was indicted for assault and vandalism under five hundred

dollars ($500). A jury found him guilty of the vandalism offense, a Class A misdemeanor,

and assessed a fine of one thousand five hundred dollars ($1500). He was found not

guilty of the assault charge. The court below sentenced the defendant to incarceration

for eleven months, twenty-nine days with a release eligibility date at ten percent. In this

direct appeal, the defendant contends that the evidence was not sufficient to support the

verdict and that the trial court erred by not sentencing him to immediate probation. After

a review of the record, we affirm the judgment below.



              Jennifer Louthan, age sixteen, testified that she and the defendant, age

twenty-three, had been engaged to be married. On the afternoon of April 12, 1995, she

drove over to the defendant’s father’s residence, where the defendant lived, with her

girlfriend Renee Mink. Ms. Louthan was driving a small pick-up truck which her father

had bought for her use. Ms. Louthan and the defendant got into an argument in which

the defendant demanded that she return the jewelry he had given her. Following this

argument, according to Ms. Louthan, she backed to the top of the driveway where the

defendant, who was in his car, bumped her truck twice from behind. Subsequently, he

got out of his car, came over to her truck while she and Ms. Mink sat in it and beat out the

back window. Ms. Louthan testified that the defendant had then struck her twice in the

head and then leaned into the truck and proceeded to attack her radio. Ms. Mink testified

to the same effect.



              The defendant took the stand and denied that he had broken out the truck

window and further denied striking Ms. Louthan. He testified that the truck window had

already been broken when Ms. Louthan arrived at the house. The defendant’s father

testified that he had heard the argument and had watched the latter portion of the

                                             2
meeting between his son and his fiancee and stated that he had not seen his son either

break out the window or strike the girl. Otis Hatfield, a friend of the defendant’s father,

testified similarly. Debbie A. Goins testified that she had driven by the defendant’s

father’s house as Ms. Louthan was pulling into the driveway and that the back window

of the truck was already broken out.



               A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless 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).



               In a challenge to the sufficiency of the convicting evidence, we must review

the evidence in the light most favorable to the prosecution in determining whether “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, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford

the State the strongest legitimate view of the proof contained in the record as well as all

reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).



               Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

                                               3
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              The instant case is a classic example of a swearing contest. The jury

believed Ms. Louthan’s version of how her truck window came to be broken. This was

the jury’s prerogative and we will not disturb its verdict. The defendant’s argument that

the jury’s decision to acquit him on the assault charge proves that it had reasonable

doubt as to the vandalism charge is without basis in law or fact. The evidence was

sufficient to prove that he vandalized Ms. Louthan’s truck and this issue is without merit.



              The defendant next contends that the trial court erred by not putting him on

immediate probation. We disagree. The trial court denied immediate probation “because

of the prior [criminal] record, the history of alcohol abuse, and the deterrence factor.”

The defendant has two prior convictions for DUI. He also admitted during cross-

examination in the guilt phase of the trial that he had been driving without a driver’s

license at the time of the offense. He told the officer preparing the presentence report

that he had started using alcohol at age sixteen and that he continues to use it “now and

then.” The “deterrence factor” referred to the court’s particular concern that “a message

needs to go out that violence is not the way to settle conflicts.”



              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). The burden of showing that the sentence is

improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments.



              Our review of the record establishes that the trial court considered the

                                             4
sentencing principles and all relevant facts and circumstances and the defendant’s

sentence is therefore cloaked with the presumption of correctness. In sentencing the

defendant, the trial court considered the sentencing purposes set forth in T.C.A.

§ 40-35-102, and “highlighted” the following:


             [O]ne, every defendant shall be punished by the imposition of a
             sentence justly deserved in relation to the seriousness of the
             offense. Number two, to assure fair and consistent treatment of
             all defendants by eliminating unjustified disparity in sentencing
             and providing a fair sense of predictability of the criminal law and
             its sanctions. And three, to prevent crime and promote respect
             for the law by providing an effective deterrent to those likely to
             violate the criminal laws of the state.


T.C.A. § 40-35-102 (1), (2) and (3)(a). The court further considered the sentencing

considerations set forth in T.C.A. § 40-35-103, and “highlighted” the following:


             One, confinement is necessary to avoid depreciating the
             seriousness of the offense, or confinement is particularly suited
             to provide an effective deterrence to others likely to commit
             similar offenses. . . . However, the sentence imposed should be
             no greater than that deserved for the offense committed.
             Inequalities in sentences should be avoided and the sentence
             imposed should be the least severe measure necessary to
             achieve the purposes for which the sentence is imposed.


T.C.A. § 40-35-103 (1)(B), (2) and (3).



              The burden of establishing suitability for probation rests with the defendant.

T.C.A. § 40-35-303(b); State v. Charlton, 746 S.W.2d 467, 469 (Tenn. Crim. App. 1987).

Factors applicable to determining the defendant’s suitability for probation include the

circumstances of the offense, his criminal record, social history and present condition,

and the deterrent effect upon and best interest of the defendant and the public. State v.

Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992).



             It is clear from the record of this cause that the defendant does not have

a great deal of respect for our laws: he started drinking while underage; he has been

                                            5
convicted for DUI twice, yet continues to drink; he has driven his car upon the public

highways without a license to do so; and he engaged in an act of vandalism while upset

with his fiancee. As set forth above, the trial court’s decision to deny immediate probation

is presumed correct. Our de novo review of the record establishes that the evidence

does not preponderate against the court’s implied finding below that the defendant did

not carry his burden of proving his suitability for probation. We therefore conclude that

the factors relied upon by the trial court in denying probation were proper. 1 As we have

stated before, “This [C]ourt should not place trial judges in a judicial straight-jacket in the

area of sentencing, and we should exercise restraint in interfering with their traditional

discretionary powers.” State v. Charles Jerry Talley, No. 03C01-9508-CC-00220, Blount

County (Tenn. Crim. App. filed May 21, 1996, at Knoxville).



                   The judgment below is affirmed.



                                                                 ______________________________
                                                                 JOHN H. PEAY, Judge



CONCUR:



_____________________________________
PAUL G. SUMMERS, Judge



_____________________________________
CORNELIA A. CLARK, Special Judge




       1
           W e note tha t the trial judge did set the d efenda nt’s releas e eligibility at ten perc ent.

                                                           6
