            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998         FILED
                                                     July 16, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9708-CC-00332
      Appellee              )
                            )    FRANKLIN COUNTY
vs.                         )
                            )    Hon. THOMAS W. GRAHAM, Judge
CHRIS W. FRAME,             )
                            )    (Evading Arrest)
      Appellant             )



For the Appellant:               For the Appellee:

Philip A. Condra                 John Knox Walkup
Dist. Public Defender            Attorney General and Reporter
P. O. Box 220
Jasper, TN 37347                 Janis L. Turner
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 James Michael Taylor
                                 District Attorney General

                                 William Copeland
                                 Asst. District Attorney General
                                 324 Dinah Shore Blvd.
                                 Winchester, TN 37398




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, Chris W. Frame, appeals as of right his conviction for the class

A misdemeanor of evading arrest. The appellant was originally charged with driving

under the influence, third offense, and evading arrest. At the conclusion of the proof,

a Franklin County jury found the appellant not guilty of driving under the influence but

guilty of evading arrest. The trial court sentenced the appellant to 11 months 29 days

with 90 days incarceration in the county jail followed by probation.



       On appeal, the appellant first contends that the evidence is insufficient to support

his conviction for evading arrest as a matter of law. Second, he contends that his

sentence was not imposed in accordance with the law and that the trial court erred in

failing to grant “immediate and outright probation” for the entirety of his sentence.



       After review, we affirm.




                                      Background



       Reviewing the evidence in the light most favorable to the State, the proof

established that, on the evening of September 4, 1995, Officer Troy Mann of the

Winchester Police Department, while patrolling Lynchburg Highway, “observed a blue

truck in my lane of travel or in the middle of the road.” He activated his blue lights and

turned around to follow the appellant’s vehicle.       After following the truck to the

residence of Roger and Sheila Edwards, he saw the appellant emerge from the driver’s

side of the truck and “take off on foot.” He saw no one else in or near the truck. Roger

Edwards and his wife, Sheila, were standing at the front of the house. He then radioed

for assistance. Sergeant Mike Doty, Investigator John Stewart, and Sergeant Mantooth

responded to Mann’s call. Upon arriving at the Edwards’ residence, they began


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searching for the appellant. Investigator Stewart located the appellant under the house.

After receiving no response from his instruction that the appellant emerge from

underneath the house, Investigator Stewart threatened to “gas” him if he did not come

out. The appellant then crawled out from underneath the house. Investigator Stewart

“got a hold of his arm and got him to his feet. He was obviously intoxicated . . .

because . . . you could smell the alcohol . . . all over him, he was staggering.” Stewart

then handcuffed the appellant and Officer Mann placed him under arrest.               The

appellant refused to submit to a blood alcohol test.



       Based upon the proof, the jury found the appellant guilty of evading arrest.




                                        Analysis



                             I. Sufficiency of the Evidence

       The appellant contends that the evidence against him is insufficient as a matter

of law to support his conviction of evading arrest. When an accused challenges the

sufficiency of the evidence, an appellate court’s standard of review is whether, after

considering 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, 324, 99 S.Ct. 2781, 2791-92 (1979); State

v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985, cert. denied, 475 U.S. 1031, 106 S.Ct.

1240 (1986)); Tenn. R. App. P. 13(e).



       In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990). Questions concerning the credibility of the witnesses, the weight and value of

the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court


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substitute its inferences for those drawn by the trier of fact from the evidence. Liakas

v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77

S.Ct. 39 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn.Crim.App. 1978). On the

contrary, this court must afford the State of Tennessee the strongest legitimate view of

the evidence contained in the record as well as all reasonable and legitimate inferences

which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.



         The appellant’s insufficient evidence claim is based upon the fact that the jury

acquitted him of driving under the influence. Our law provides that a person is guilty

of evading arrest if that person: (1) intentionally flee[s] from anyone the person knows

to be a law enforcement officer and (2) knows the officer is attempting to arrest the

person. Tenn. Code Ann. § 39-16-603(a)(1)(A) (1991). At trial, the appellant defended

against the DUI charge upon grounds that he was not the driver of the truck.1

Accordingly, he argues that, because the jury accredited the defense witnesses and

found that he was not the driver, there was no way for him to have known that the

police were attempting to arrest him.



         The appellant’s insufficiency argument that, because he was acquitted of DUI,

he cannot, as a matter of law, be guilty of evading arrest is essentially an “inconsistent

verdicts” argument and is misplaced. Inconsistent verdicts are permitted as long as

there is sufficient evidence to permit a rational fact finder to find a defendant’s guilt

beyond a reasonable doubt on the charges on which the defendant was convicted. In

Wiggins v. State, 498 S.W.2d 92, 93 (Tenn. 1973), our Supreme Court adopted the

analysis of the United States Supreme Court in Dunn v. United States, 284 U.S. 390,

52 S.Ct. 189 (1932), and held that “consistency between verdicts on separate counts

of an indictment is not necessary,” because “each count of an indictment is to be



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           The appellant did not testify at trial. However, his friends, Roger Edwards and wife,
Shelia Edwards, testified that, when the truck drove into their yard followed by the police, there
were three individuals in the truck and that Jerry Majors, not the appellant, was driving. The
allege d driv er, M ajors , the n eph ew o f Ms . Edw ards and a resid ent o f “so me whe re in G eorg ia,” did
not te stify.

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regarded as a separate indictment” and must be individually supported by the evidence.

Thus, our analysis returns to the question of whether the elements of the offense of

evading arrest have been proven beyond a reasonable doubt.



       At trial, the jury heard Officer Mann testify that he saw a truck being driven in an

erratic manner on a public highway. The proof further established that Officer Mann

pursued the truck, with “blue lights” on, into the Edwards’ driveway. Upon entering the

Edwards’ property, the officer testified that he saw the appellant, who was driving, open

the door and flee from the truck. These facts are sufficient for a rational trier of fact to

have found the appellant guilty of evading arrest beyond a reasonable doubt. Tenn.

R. App. 13(e). This issue is without merit.



       In a somewhat related subissue of his insufficiency argument, the appellant

contends that the officer, upon entering the Edwards’ property, “certainly did not have

sufficient facts upon which a warrantless arrest would have been proper.”                 In

Tennessee, it is clear that an officer may make a valid warrantless misdemeanor arrest

for a public offense committed or a breach of the peace threatened in his presence.

See Tenn. Code Ann. § 40-7-103(1) (1995 Supp.); State v. Duer, 616 S.W.2d 614, 616

(Tenn. Crim. App. 1981). Again, reviewing the testimony in the light most favorable to

the State, Officer Mann testified that he personally observed a truck driving on the

centerline of the highway. After activating his blue lights, the officer observed the

appellant get out of the truck and flee on foot. After the appellant emerged from

underneath the house, the officer concluded that the appellant was intoxicated. These

facts and circumstances, as observed by the officer, would have justified an arrest for

both DUI and evading arrest. Tenn. R. App. 13(e). This issue is without merit.




                                      II. Sentencing

       The appellant next contends that the trial court imposed an excessive sentence.


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Specifically, the appellant argues that the trial court did not follow the principles,

purpose and goals of the Sentencing Act, when it imposed a sentence of 11 months 29

days with 90 days to be served in the county jail, followed by probation. Rather, the

appellant asserts that he should have received “immediate and outright probation.”



       When an appellant complains of his sentence on appeal, this court conducts a

de novo review coupled with a presumption that the trial court’s sentencing

determinations are correct. Tenn. Code Ann. § 40-35-210(d) (1995 Supp.). However,

this presumption is conditioned upon an affirmative showing that the trial court

considered the relevant sentencing principles and all pertinent facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Regardless of whether the

presumption of correctness is applied, the burden of showing the impropriety of the

sentence is on the appealing party. Sentencing Commission Comments, Tenn. Code

Ann. § 40-35-401.



       Misdemeanor sentencing is governed by Tenn. Code Ann. § 40-35-302 (1995

Supp.). Although otherwise entitled to the same considerations under the Sentencing

Reform Act of 1989, unlike a felon, a misdemeanant is not entitled to the presumption

of a minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App.

1995) (citation omitted); State v. Warren, No. 01C01-9605-CC-00218 (Tenn. Crim. App.

at Nashville, May 21, 1997) (citation omitted). Moreover, as a sentencing hearing is not

mandatory, see Tenn. Code Ann. § 40-35-302, trial courts are not required to explicitly

place their findings on the record; although such practice is beneficial for appellate

review. See State v. McKnight, No. 01C01-9509-CC-00313 (Tenn. Crim. App. at

Nashville, June 11, 1996), perm. to appeal denied, (Tenn. Jan. 6, 1997). Additionally,

while we acknowledge that the purpose of requiring the trial court to consider

enhancement and mitigating factors in felony sentencing is to assure the determination

of an appropriate sentence within the applicable sentencing range, we recognize that,

a misdemeanor sentence, as opposed to a felony sentence, contains no sentence


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range. See State v. Troutman, No. 03C01-9509-CC-00287 (Tenn. Crim. App. at

Knoxville, Nov. 6, 1996), perm. to appeal granted, (Tenn. May 5, 1997) (Hayes, J.,

dissenting). Thus, although strict compliance with formal procedures is vital in felony

sentencing in part to avoid disparity in the sentencing of defendants, such rigid

compliance is not necessary in misdemeanor sentencing where the relative narrow

sentencing periods encompassed by class A, B, and C misdemeanors eliminates, per

se, the potential for disparity. Id. Accordingly, in misdemeanor cases, the trial judge,

who is able to observe first-hand the demeanor and responses of the defendant while

testifying, must be granted broad discretion in arriving at the appropriate sentence.



       In this case, the trial court imposed a 90 day period of incarceration in the county

jail but granted work release, permitting the appellant to be released from custody from

6:00 a.m. to 6:00 p.m. during weekdays. This consideration was granted so that the

appellant could work in order to support his children and pay the assessed fine and

court cost.



       Upon de novo review, we find that the trial court followed appropriate sentencing

principles and that the presumption of correctness applies. The appellant is a self-

employed landscaper and maintenance worker.             A pre-sentence records check,

ordered by the court, revealed that the appellant had prior convictions for larceny,

reckless driving, driving under the influence and multiple public intoxication convictions.

The record indicates that the trial court considered the appellant’s “previous history of

intoxication” and the nature and circumstances of the present offense. Moreover, past

efforts at rehabilitation, via probation, have been applied unsuccessfully. For these

reasons, we conclude that the appellant has failed to establish that the sentence

imposed by the trial court is excessive. This issue is without merit.



       Accordingly, the judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_____________________________
GARY R. WADE, Presiding Judge



_____________________________
JERRY L. SMITH, Judge




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