        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville August 24, 2010

    STATE OF TENNESSEE v. TERRY DWIGHT MOONINGHAM, JR.

                    Appeal from the Bedford County Circuit Court
                       No. 16815 Franklin L. Russell, Judge


                 No. M2010-00178-CCA-R3-CD - Filed March 4, 2011


The Defendant, Terry Dwight Mooningham, Jr., was found guilty by a Bedford County
Circuit Court jury of driving under the influence (DUI), fourth offense, a Class E felony;
evading arrest, a Class D felony; driving with a revoked license, a Class A misdemeanor; and
violation of the implied consent law, a Class A misdemeanor. See T.C.A. §§ 55-10-401
(2006) (amended 2011), 39-16-603 (2010), 55-50-504 (2006), 55-10-406 (2006). He was
sentenced as a Range II, multiple offender to four years’ confinement for the DUI conviction,
eight years’ confinement for evading arrest, eleven months and twenty-nine days’
confinement for driving with a revoked license, and six months’ confinement for violation
of the implied consent law. The DUI and evading arrest convictions were ordered to be
served consecutively for an effective twelve-year sentence. On appeal, the Defendant
contends that the evidence was insufficient to support his DUI conviction and that his
sentences are excessive. We affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and A LAN E. G LENN, JJ., joined.

 Gregory D. Smith, Clarksville, Tennessee (on appeal), and Andrew Jackson Dearing, III,
Assistant District Public Defender (at trial), for the appellant, Terry Dwight Mooningham,
Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Chuck Crawford, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

       This case relates to a high-speed chase that ended with the Defendant jumping off a
bridge. At trial, Bedford County Sheriff’s Deputy Garcia Jordan testified that on December
7, 2008, he received a message to be on the lookout for a stolen Nissan pickup truck with an
extended cab. He said that he saw a truck matching the description preparing to leave a
Kroger parking lot and that he radioed Deputy Jason Freeman to come to the scene. He said
he confirmed that the truck was stolen by checking the license plate number in the sheriff’s
department computer system. He said that Deputy Freeman arrived and that they turned on
their emergency lights and walked toward the truck.

        Deputy Jordan testified that he saw a male sitting in the driver’s seat of the truck and
a female passenger. He said Deputy Freeman told the female to get out of the truck and place
her hands on the side of it. He said that after the woman was out of the truck, the driver
restarted it and drove away, despite being told to turn off the engine. He said that he could
not identify the driver at that point but that he identified and arrested the female passenger,
Vicky Brewer. He said Deputy Freeman chased the driver. He said that he drove to the
scene where the chase ended and that Deputy Freeman had the Defendant in custody.

        On cross-examination, Deputy Jordan testified that the message he received
instructing him to watch for the stolen truck did not indicate that Ms. Brewer was the person
who stole it. He said the truck had lightly tinted windows, and he agreed he saw Ms. Brewer
sitting in the passenger seat. He agreed he could not see who drove the truck as it left the
scene of the traffic stop.

         Bedford County Sheriff’s Deputy Jason Freeman testified that he was trained to
recognize when a person was driving under the influence and that he had conducted more
than thirty DUI traffic stops. He said that on December 7, 2008, he received a message to
be on the lookout for a stolen Nissan pickup truck with an extended cab. He said the
message stated that Ms. Brewer was suspected of stealing the truck. He said he was familiar
with Ms. Brewer because she had warrants issued for her arrest. He said Deputy Jordan
radioed that he saw the stolen truck in a Kroger parking lot. Deputy Freeman said he drove
to the parking lot and activated his police cruiser lights. He said he saw the Defendant sitting
in the driver’s seat of the truck and Ms. Brewer sitting in the passenger seat. He said that he
told the Defendant to turn off the engine and that he asked Ms. Brewer to step out of the
truck. He said he heard the truck engine restart after Ms. Brewer got out. He said that he
told the Defendant to turn off the engine but that the Defendant drove away at a high rate of
speed. He said he ran to his police car and chased the Defendant.




                                              -2-
        Deputy Freeman testified that the chase occurred at 4:51 p.m. and that traffic was on
the road. He said the Defendant drove at speeds over 100 miles per hour, swerved, and
moved erratically between cars. He said the Defendant pulled into the oncoming traffic lane
and slowed as they approached the Mullins Mill Bridge. He said the Defendant got out of
the truck and jumped off the bridge into the water below. He said that he told the Defendant
to “freeze” but that the Defendant began swimming away. He said he returned to his car and
drove to the end of the bridge and down beside the water. He said that he lost sight of the
Defendant but that he heard a noise on the opposite side of the river. He said he called for
police backup. He said Deputy Steven Daugherty arrived and arrested the Defendant. He
said he did not see the Defendant’s arrest because it occurred on the opposite side of the
river.

         Deputy Freeman testified that he had another officer bring the Defendant to him. He
said he opened the door to the police car and smelled alcohol. He said the odor “could knock
you down it was so strong.” He said the Defendant had been in the car for less than two
minutes. He said the Defendant had “red watery eyes” and slurred speech. He said the
Defendant was verbally abusive and refused to cooperate or take a field sobriety test. He said
that when asked if he consumed alcohol, the Defendant replied, “I ain’t telling you s---.” He
said the Defendant’s breath continued to smell of alcohol as he spoke to the officers. He said
the Defendant was unsteady on his feet and repeatedly attempted to hold onto the side of the
police car to maintain his balance. He said the Defendant’s actions indicated that he was
intoxicated.

        Deputy Freeman testified that he told the Defendant he was under arrest for DUI and
read the Defendant an implied consent form. He said he informed the Defendant that he
could lose his license if he refused to take a blood alcohol test. He said the Defendant
refused to sign the implied consent form and refused to take a blood alcohol test. He said he
wrote on the form that the Defendant refused to sign and had a witness sign the form to
confirm the Defendant’s refusal. He said he drove the Defendant to the hospital to receive
medical treatment. He said a strong alcohol odor formed in his car during the drive. He said
he later learned that the Defendant had been driving with a revoked license at the time of his
arrest.

       On cross-examination, Deputy Freeman agreed that the Defendant fell about twenty-
five feet before he hit the water under the bridge. He agreed that he had seen persons with
head injuries, but he said he did not know if red eyes and irrational behavior typically
accompanied a head injury.

       Bedford County Sheriff’s Deputy Steven Daugherty testified that he responded to a
request for backup from Deputy Freeman on December 7, 2008. He said he initially drove

                                             -3-
to the side of the river where Deputy Freeman was located but moved across the river after
being told that Deputy Freeman heard noises on the opposite side. He said that he saw the
Defendant crawling up the river bank and that he ordered the Defendant to stop. He said he
and Deputy Jimmy Rhodes took the Defendant into custody and placed the Defendant in a
police car.

       Bedford County Sheriff’s Corporal Ronnie Gault testified that he observed the
Defendant shortly after his arrest. He said the Defendant was belligerent and refused to
submit to any type of sobriety test. He said that Deputy Freeman read the Defendant an
implied consent form and that the Defendant refused to take a blood alcohol test or sign the
form. He said he signed the implied consent form to confirm that the Defendant refused to
take the test or sign the form. The Defendant was found guilty on the foregoing evidence
of DUI, fourth offense, evading arrest, driving with a revoked license, and violation of the
implied consent law.

       At the sentencing hearing, the trial court found that the following enhancement factors
applied pursuant to Tennessee Code Annotated section 40-35-114:

              (1) The Defendant has a previous history of criminal
              convictions, in addition to those necessary to establish the
              appropriate range;

              (8) The Defendant, before trial or sentencing, failed to comply
              with the conditions of a sentence involving release into the
              community; and

              (13) At the time the felony was committed, the Defendant was
              released on probation.

See T.C.A. § 40-35-114 (2010). The court found no mitigating factors applicable. The
Defendant was sentenced as a Range II, multiple offender to four years’ confinement for the
DUI conviction, eight years’ confinement for evading arrest, eleven months and twenty-nine
days’ confinement for driving with a revoked license, and six months’ confinement for
violation of the implied consent law. The DUI and evading arrest convictions were ordered
to be served consecutively for an effective twelve-year sentence. This appeal followed.

                                              I

       The Defendant contends that the evidence was insufficient to support his DUI
conviction. He argues that the State failed to prove that he was intoxicated at the time he

                                             -4-
drove because it did not establish what occurred between the time he left his truck and his
arrest. The State contends that the evidence was sufficient to permit the jury to infer that the
Defendant was intoxicated while driving. We agree with the State.

       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 (1979). This means that we may not reweigh
the evidence but must presume that the trier of fact 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). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       Tennessee Code Annotated section 55-10-401 states:

              It is unlawful for any person to drive or to be in physical control
              of any automobile or other motor driven vehicle on any of the
              public roads and highways of the state, or on any streets or
              alleys, or . . . any other premises that is generally frequented by
              the public at large, while: (1) Under the influence of any
              intoxicant. . . .

Taken in the light most favorable to the State, Deputy Freeman testified that he saw the
Defendant sitting in the driver’s seat of a truck that sped away from the scene of a traffic
stop. The Defendant drove at speeds over 100 miles per hour, swerved, and moved
erratically between cars on a public road. The Defendant pulled into the oncoming traffic
lane as he approached the Mullins Mill Bridge, got out of the truck, and jumped off the
bridge into the water. The Defendant was arrested a short time later and placed in a police
car, where he sat for about two minutes. The car contained a strong alcoholic odor. The
Defendant’s breath continued to smell like alcohol as he spoke to the officers. Deputy
Freeman said the Defendant had “red watery eyes,” slurred his speech, and was verbally
abusive. The Defendant was unsteady on his feet and repeatedly attempted to hold onto the
police car to maintain his balance. Deputy Freeman said the Defendant’s actions indicated
that he was intoxicated. Although Deputy Freeman lost sight of the Defendant briefly while
the Defendant was in the water, nothing in the record suggests that the Defendant had the
time or ability to consume alcohol after he got out of his truck, jumped off a bridge, and
swam to shore in a failed escape attempt.




                                              -5-
       We conclude that a rational trier of fact could have found the elements of driving
under the influence beyond a reasonable doubt. We hold that the evidence is sufficient to
support the Defendant’s conviction.

                                              II

       The Defendant contends that his sentences are excessive and should be served
concurrently because his convictions resulted from a single continuing act. The State
contends that the trial court properly sentenced the Defendant after considering his long
history of criminal offenses and probation violations. We agree with the State.

        Appellate review of 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) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

        However, “‘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. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

        Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

                                              -6-
       In imposing a sentence within the appropriate range of punishment for the defendant:

                     [T]he court shall consider, but is not bound by, the
              following advisory sentencing guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).

        The determination of concurrent or consecutive sentences is a matter left to the
discretion of the trial court and should not be disturbed on appeal absent an abuse of
discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which
states in pertinent part that the court may order sentences to run consecutively if it finds by
a preponderance of the evidence that:

              (2) The defendant is an offender whose record of criminal
              activity is extensive;

              (4) The defendant is a dangerous offender whose behavior
              indicates little or no regard for human life, and no hesitation
              about committing a crime in which the risk to human life is
              high; or

              (6) The defendant is sentenced for an offense committed while
              on probation.




                                              -7-
“These criteria are stated in the alternative; therefore, only one need exist to support the
appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003).

        At the sentencing hearing, the State introduced the presentence report. No testimony
was presented. The trial court found that enhancement factor (1) applied because in addition
to the two felony convictions necessary to establish the Defendant as a Range II offender, the
Defendant also had convictions for theft, reckless endangerment, evading arrest, domestic
violence, public intoxication, disorderly conduct, and underage drinking. See T.C.A. § 40-
35-114. The trial court found that enhancement factor (8) applied because the Defendant
had his probation revoked in 2008, 2004, and 2002, and he had his judicial diversion revoked
in 2003. See id. The trial court also found that enhancement factor (13) applied because the
Defendant was on probation when he committed the current offenses. See id. The court
found no mitigating factors applicable. In determining that consecutive sentencing was
appropriate, the trial court found that the Defendant had an extensive history of criminal
convictions, that he indicated little or no regard for human life when he led police on a chase
at speeds over 100 miles per hour on a public road, and that he was on probation when he
committed the current offenses.

         The Defendant has cited no authority supporting his claim that his sentences should
be served concurrently because his convictions resulted from a single continuing act. The
record reflects that the Defendant has an extensive history of criminal convictions, has had
his probation revoked numerous times, and was released on probation at the time of the
instant offenses. The Defendant has not shown that the trial court imposed improper
sentences or that it abused its discretion by ordering consecutive sentencing. The Defendant
is not entitled to relief.

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.




                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -8-
