             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                 FILED
                           SEPTEMBER 1998 SESSION
                                                             November 20, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )
             Appellee,          )    No. 03C01-9711-CR-00491
                                )
                                )    Knox County
v.                              )
                                )    Honorable Chester R. Mahood, Judge
                                )    (by designation) (at trial)
                                )
                                )    Honorable Richard R. Baumgartner, Judge
JACK FRANKLIN,                  )    (Sentencing)
                                )
             Appellant.         )    (Driving while under the influence of an
                                )    intoxicant, second offense; driving on a
                                )    revoked license)




For the Appellant:                   For the Appellee:

Mark E. Stephens                     John Knox Walkup
District Public Defender             Attorney General of Tennessee
   and                                      and
John Halstead                        Elizabeth B. Marney
Assistant Public Defender            Assistant Attorney General of Tennessee
1209 Euclid Avenue                   425 Fifth Avenue North
Knoxville, TN 37921                  Nashville, TN 37243-0493
(AT TRIAL)
                                     Randall E. Nichols
Mark E. Stephens                     District Attorney General
District Public Defender                     and
   and                               Marsha Selecman
Paula R. Voss                        Assistant District Attorney General
John Halstead                        City-County Building
1209 Euclid Avenue                   Knoxville, TN 37902
Knoxville, TN 37921
(ON APPEAL)




OPINION FILED:____________________


CONVICTIONS AFFIRMED; REMANDED FOR NEW SENTENCING HEARING

Joseph M. Tipton
Judge
                                        OPINION



              The defendant, Jack Franklin, appeals as of right following his convictions

by a jury in the Criminal Court of Knox County for driving while under the influence of an

intoxicant (D.U.I.), second offense, a Class A misdemeanor, and driving on a revoked

license (D.O.R.L.), a Class B misdemeanor. For the D.U.I. conviction, the defendant

was sentenced to eleven months and twenty-nine days confinement to be served in the

Knox County Jail, with all but ninety days suspended followed by nine months of

supervised probation. He was also fined fifteen hundred dollars. For the D.O.R.L.

conviction, he was sentenced to six months confinement, with all but ninety days

suspended, the remainder to be served on supervised probation, and he was fined five

hundred dollars. The jail time was to run concurrently, and the probation was to run

consecutively. In this appeal, the defendant contends that the evidence is insufficient to

support his conviction for D.U.I., the trial court erred in sentencing, and the trial court

erred by denying his motion for a court reporter to be provided by the state. We affirm

the convictions but remand the case for a new sentencing hearing.



              Because the proceedings at trial were not transcribed, the only record

available for our review is a Statement of the Evidence that was prepared by the

defendant and approved by the state and the trial court. T.R.A.P. 24(c). At trial, Jerry

Childress testified that at about 9:30 or 10:00 p.m. on December 31, 1993, he was at

the Wal-Mart on Maynardville Highway when he caught a glimpse of the defendant’s

car and saw it hit another car. He said the defendant’s car did not have on its

headlights. He said he put on his emergency flashers and went to check on the

defendant. He testified that the defendant was sitting behind the steering wheel, and

there was no one else present in the car. He said there was not enough time for

someone to have exited the car and left the scene. He testified that when he told the

defendant to turn on his headlights, the defendant became irate and cursed him.



                                              2
Childress said he determined that the defendant was not injured, and he moved away

from the car. Childress said the defendant appeared to have been drinking, and he

could smell alcohol coming from the defendant. He also said the defendant became

irate when a police officer asked for the defendant’s driver’s license, and the defendant

tried to pass the officer his Social Security card.



              On cross-examination, Childress admitted that two of his sons were killed

in single car accidents. He admitted that he often thought about the accidents in which

his sons were killed, and this is probably why he paid close attention to the accident in

the present case. He said the police did not interview him at the scene but took his

name.



              Sandra Massengill, a Tennessee State Trooper, testified that she arrived

on the scene of the accident and saw the defendant’s car in the southbound lane. She

said the defendant was agitated when she spoke with him, and she suspected he had

been drinking. She said the defendant was standing at the driver’s side of his car, and

she immediately smelled alcohol. She said she did not remember asking the defendant

if he was the driver, although she said she probably did, and her paperwork listed the

defendant as the driver. She testified that the defendant was belligerent and

uncooperative, and he gave her his Social Security card instead of his driver’s license.

She said his eyes were red and watery, his speech was slurred, and his clothes were

disheveled.



              On cross-examination, Trooper Massengill said that she was not present

at the time of the accident and did not see the accident occur. She said she did not see

the defendant driving his car.




                                              3
             Trooper John Woods testified that the defendant was heavily intoxicated,

and he could smell alcohol coming from the defendant. He said he could not

understand everything the defendant was saying.



             Trooper Vanessa Boles testified that when she arrived at the scene, there

were people everywhere. She said the defendant was unruly and tried to pass his

Social Security card when she asked for his driver’s license. She said the defendant

told her that no one else was with him, and he did not deny drinking. She said she

asked the defendant to perform a heel-to-toe test, but he could not do it. A certified

copy of the defendant’s driving record was introduced into evidence, and the record

showed that the defendant’s license was revoked at the time of the accident. Trooper

Boles stated that she did not fill out a D.U.I. report. She said the defendant was upset

because the other car failed to yield and caused the accident.



             The defendant presented two witnesses. Paul Flatford testified that he

had known the defendant for about ten years but that they were acquaintances, not

friends. He said he saw the defendant on the night of the accident. He said that as he

was driving, he saw the defendant in the passenger side of a car, and a woman with

dark hair was driving the car. He said the car’s headlights were on. He said the

defendant waved to him as he passed. He said the accident occurred a few seconds

later when a small white car came across the road and was struck by the defendant’s

car. He said that because traffic was backed up, he went around the accident and went

home. He admitted that he had talked to the defendant since the accident, but he said

he did not ask the defendant who was driving. Flatford said he remembered the

defendant saying that there was a woman driving.



             Scott Day testified that he was driving down Maynardville Highway behind

the defendant before the accident occurred. He said there were two people in the



                                            4
defendant’s car, and its headlights were lit. He said the driver was a female with short

dark hair. He said that as they were proceeding down the road, a small white car pulled

out from the intersection. Day testified that the defendant was the passenger in the car.

He said that after the accident, the woman driving the car left and walked to another

car. He said he left after determining that no one was injured. He said he learned the

next morning that the defendant was looking for witnesses, and he notified the

defendant through a friend that he had witnessed the accident. He said he had seen

the defendant a couple of times since the accident. He also said he did not see the

defendant at the scene of the accident.



              In rebuttal, Trooper Boles testified that she did not recall seeing either

Flatford or Day at the wreck. She admitted that she arrived at least five minutes after

the wreck occurred. Trooper Massengill testified that the other car involved in the

accident was blue, not white.



                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is insufficient to support his

conviction for D.U.I. Specifically, he argues that because the state presented only one

eyewitness to the accident who was impeached, and the defendant presented two

eyewitnesses, the weight of the evidence is insufficient. He also argues that the trial

court should have set aside the verdict in its capacity as a thirteenth juror. We

conclude that the evidence is sufficient to support the conviction for D.U.I.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal 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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that



                                             5
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              Viewing the evidence in this light, we conclude that it is sufficient. The

state presented one eyewitness who testified that the defendant was driving the car and

that the headlights were not on. The witness also testified that after the wreck, there

was not enough time for someone to have exited the defendant’s car and left the

scene. Three state troopers testified that the defendant was intoxicated. One trooper

testified that the defendant told her there was no one else in the car. Although the

defense presented two witnesses who testified that a dark haired woman was driving

the car, the jury was entitled to accredit the testimony of the state’s witnesses and reject

the testimony of the defense witnesses.



              The defendant also contends that the trial court erred by denying him a

new trial in its capacity as a thirteenth juror. Rule 33(f), Tenn. R. Crim. P., provides that

the trial court may grant a new trial if it views the verdict to be contrary to the weight of

the evidence. When a motion for a new trial is overruled without comment, approval of

the verdict is presumed. See State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App.

1993). Furthermore, “once the trial court approves the verdict as the thirteenth juror

and imposes judgment, the review of the evidence on appeal is quite limited, requiring

the accrediting of the testimony of the witnesses for the state and the resolution of

evidentiary conflicts in favor of the state.” State v. Burlison, 868 S.W.2d 713, 719

(Tenn. Crim. App. 1993) (citation omitted). W hen viewed in this light, the record shows

that the trial court denied the defendant’s motion for a new trial, finding the evidence to

be “adequate, if not overwhelming.” We conclude that the trial court did not err by

refusing to set aside the verdict or grant the defendant a new trial.




                                              6
                                     II. SENTENCING

              The defendant contends that his sentence is excessive. He argues that

the trial court improperly sentenced him to more than the mandatory minimum sentence

set by the legislature. He also contends that the trial court erred by requiring his

probationary periods to run consecutively. The state argues that the sentence is

proper.



              Appellate review of misdemeanor sentencing is de novo on the record

with a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-

401(d), -402(d). The “presumption of correctness which accompanies the trial court’s

action 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). As the Sentencing Commission Comments

to T.C.A. § 40-35-401(d) note, the burden is now on the appealing party to show that

the sentencing is improper. We note that there is no presumptive minimum sentence

provided by law for misdemeanor sentencing. See, e.g., State v. Creasy, 885 S.W.2d

829, 832 (Tenn. Crim. App. 1994). However, in misdemeanor sentencing, the trial court

must consider the purposes and principles of the Criminal Sentencing Reform Act of

1989. T.C.A. § 40-35-302(d).



              Although the defendant argues that the length of his sentence is

excessive, T.C.A. § 55-10-403(c) essentially mandates a maximum sentence for D.U.I.,

“with the only function of the trial court being to determine what period above the

minimum period of incarceration established by statute, if any, is to be suspended.”

State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996). Therefore, we must

determine whether the trial court erred in concluding that alternatives to incarceration

were not appropriate in this case.




                                             7
              In sentencing the defendant to eleven months and twenty-nine days with

all but ninety days suspended for the D.U.I. conviction, the trial court stated that it was

considering the defendant’s prior convictions for felony assault and simple assault, and

the circumstances of the offense, believing that it was an accident involving personal

injury. The trial court also considered the need for deterrence and the fact that the

defendant persisted in claiming that he was not driving the car.



              We question the bases for the trial court’s sentencing determinations. 1

There is no evidence in the record before us that the accident resulted in personal

injury. Nor is there evidence in the record of the particularized need for deterrence

within the jurisdiction. See T.C.A. § 40-35-103(1)(B); see also State v. Horne, 612

S.W.2d 186, 187 (Tenn. Crim. App. 1980); State v. Smith, 735 S.W.2d 859, 864 (Tenn.

Crim. App. 1987) (holding that the trial court’s finding that the sentence will have a

deterrent effect cannot be merely conclusory but must be supported by proof). The

problem, though, is that the defendant failed to include the presentence report as part

of the record on appeal. Thus, we are in no position to conduct a proper de novo

review.



              In any event, however, we agree with the defendant’s contention that the

trial court did not have the authority to set the defendant’s periods of confinement for

the D.U.I. and D.O.R.L. to run concurrently while setting his periods of probation to run

consecutively. If a defendant is sentenced to both confinement and probation, the

probation must run in the same manner as the confinement. “The term ‘sentence’

includes both the period of incarceration and the period of probation. Thus, if the trial

court orders the defendant’s sentences to run consecutively, then each portion of his

sentences must be so served.” State v. Connors, 924 S.W.2d 362, 364 (Tenn. Crim.

App. 1996). Thus, the case should be remanded for resentencing.



              1
                  W e not e tha t the s ente ncin g jud ge did not p resid e ove r the d efen dan t’s trial.

                                                           8
                        III. MOTION FOR A COURT REPORTER

              The defendant argues that the trial court erred by denying his oral motion

for a court reporter. He contends that he has been unduly prejudiced on appeal

because his case involves complicated factual claims of witnesses for which

transcription was necessary to convey an accurate picture of the trial. The state argues

that because the defendant’s Statement of the Evidence is sufficient to allow adequate

review of the sufficiency of the evidence, any potential error was harmless, and the

defendant was not prejudiced.



              Initially, we note that indigent defendants have due process and equal

protection rights to an appellate review as adequate as those defendants who can

afford transcripts. See Mayer v. City of Chicago, 404 U.S. 189, 193, 92 S. Ct. 410, 413

(1971). This means that the state must provide an indigent defendant with “a record of

sufficient completeness to permit proper consideration of his claims.” Mayer, 404 U.S.

at 194, 92 S. Ct. at 414 (citations omitted). However, a trial court’s denial of a

defendant’s motion for a court reporter does not automatically create reversible error.

See State v. Hammond, 638 S.W.2d 433, 434 (Tenn. Crim. App. 1982). Other methods

of reporting trial proceedings may provide a defendant with a sufficiently complete

record, including a statement of facts to which both sides have agreed. Mayer, 404

U.S. at 194, 92 S. Ct. at 414. In Tennessee, an appellant may prepare a Statement of

the Evidence in lieu of a verbatim transcript if “no stenographic report, substantially

verbatim recital or transcript of the evidence or proceedings is available.” T.R.A.P.

24(c); see State v. Gallagher, 738 S.W.2d 624, 626 (Tenn. 1987); Hammond, 638

S.W.2d at 434 (holding that a statement of the Evidence verified for accuracy and

approved by both sides and the trial judge is adequate for appellate review of

sufficiency of the evidence).




                                             9
              In light of the detailed Statement of the Evidence provided by the

defendant and approved by both the district attorney and the trial court, we conclude

that the defendant suffered no prejudice on appeal by not having a court reporter at

trial. The Statement of the Evidence was adequate for this court to conduct its review

of the sufficiency of the evidence.



              The defendant also argues that the record is inadequate for this court to

review whether the trial court failed in its capacity as the thirteenth juror. However, the

defendant’s motion for a new trial was transcribed, and it reflects that the trial court

determined the evidence to be “adequate, probably overwhelming.” Having concluded

that the trial court exercised its capacity as the thirteenth juror, we have nothing else to

review. See Burlison, 868 S.W.2d at 719. This issue is without merit.



                                      CONCLUSION

              In consideration of the foregoing and the record as a whole, the

convictions for driving under the influence of an intoxicant, second offense, and driving

on a revoked license are affirmed. The case is remanded to the trial court for a new

sentencing hearing.



                                                  __________________________
                                                  Joseph M. Tipton, Judge

CONCUR:

_________________________
John H. Peay, Judge



_________________________
David G. Hayes, Judge




                                             10
