          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                Assigned on Briefs April 27, 2016

                   STATE OF TENNESSEE v. BILLY APPLEGATE

                    Appeal from the Criminal Court for Sullivan County
                       No. S62442    James F. Goodwin, Jr., Judge


                     No. E2015-00809-CCA-R3-CD – Filed June 10, 2016


The Defendant, Billy Applegate, was indicted for one count of driving under the
influence (DUI); one count of DUI per se; one count of leaving the scene of an accident
resulting in damage to property adjacent to a highway; one count of driving a motor
vehicle with an expired registration; and two counts of resisting arrest. See Tenn. Code
Ann. §§ 39-16-602, 55-4-104, -10-105, -10-401. Following a jury trial, the Defendant
was acquitted of the DUI, DUI per se, and leaving the scene of an accident charges. The
jury convicted the Defendant of driving with an expired registration and both resisting
arrest charges. The trial court imposed a total effective sentence of six months‟
incarceration to be served at seventy-five percent. In this appeal as of right, the
Defendant contends (1) that the evidence was insufficient to sustain his resisting arrest
convictions; and (2) that the trial court erred in denying the Defendant‟s request for
alternative sentencing.1 Following our review, we affirm the judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., J., joined. JAMES CURWOOD WITT, JR., J., filed a separate concurring
opinion.

Stephen M. Wallace, District Public Defender; and Ashley D. Boyer (at trial) and
William Andrew Kennedy (at trial and on appeal), Assistant District Public Defenders,
for the appellant, Billy Applegate.



1
  We have reservations about whether the Defendant‟s actions happened after the arrest was effectuated
and whether the proper unit of prosecution was applied to the resisting arrest convictions. However, the
Defendant raised neither of these issues in the trial court nor in his appellate brief to this court. Therefore,
the Defendant has waived our consideration of these issues. See Tenn. R. App. P. 13(b) (stating that
“[r]eview generally will extend only to those issues presented for review”).
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Barry Staubus, District Attorney General; and Joseph W. McMurray and
Benjamin Rowe, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

       As pertinent to our review, Deputy Joey Hackler of the Sullivan County Sheriff‟s
Office responded to a call of “a single vehicle crash” at approximately 10:30 p.m. on
September 22, 2012. Deputy Hackler testified that when he arrived at the scene he found
“a red Jeep truck down in the ditch” just off the road with “some tracks that [led] from
the road into the grass [and] into the ditch.” Deputy Hackler further described the vehicle
as being “kind of angled” and said that it looked like “it couldn‟t get out.” Deputy
Hackler testified that the truck appeared to have knocked down a street sign.

       Deputy Hackler testified that the vehicle was unoccupied. Deputy Hackler
checked the truck‟s license plate “to find out who it belong[ed] to.” The truck was
registered to the Defendant, who lived just up the hill from where the truck was found.
Deputy Hackler also noticed that the truck‟s registration was expired. Deputy Hackler
entered the truck to perform “an inventory” before having it towed away. Deputy
Hackler testified that upon entering the vehicle, he “could smell a strong odor of
alcohol.”

       Having determined that the truck was registered to the Defendant, Deputy
Hackler, Sergeant Joe Stewart, and a local constable went to the Defendant‟s home to
investigate further. Deputy Hackler “heard something moving” in the brush of a nearby
embankment while Sgt. Stewart was at the front door of the house speaking to the
Defendant‟s wife. Deputy Hackler, Sgt. Stewart, and the constable walked over to the
embankment and found the Defendant “kind of crouched down . . . in behind the weeds.”
Deputy Hackler identified himself and asked the Defendant to come out.

       Deputy Hackler testified that the Defendant did not respond to his command to
come out of the brush. Deputy Hackler and Sgt. Stewart “helped [the Defendant] out” by
“grabb[ing] his arm” and “pull[ing] him up the hill.” Deputy Hackler testified that the
Defendant was not “in compliance as [they] were pulling him up the hill.” Deputy
Hackler described the Defendant as “kind of rough looking, kind of grungy” and said that
he “could smell a strong odor of alcohol coming from his person.” The Defendant denied
hiding from the officers when they came to his house. The Defendant testified that he
was “actually in [his] front yard puking.”

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       Deputy Hackler asked the Defendant to submit to some field sobriety tests, and the
Defendant “was very uncooperative and refused to do so.” The Defendant was then
arrested on suspicion of DUI. The Defendant was placed in Sgt. Stewart‟s patrol car to
transport him to a local hospital for a blood draw. Deputy Hackler testified that as they
drove away from the Defendant‟s house and down the hill, Sgt. Stewart stopped his patrol
car. Deputy Hackler saw the Defendant “being uncooperative [and] trying to kick out the
[patrol car‟s] window.” The Defendant had been handcuffed with his hands behind his
back, and as Deputy Hackler approached Sgt. Stewart‟s patrol car, he could see the
Defendant “trying to get his hands in front of him.”

       Deputy Hackler testified that the Defendant was eventually able to get his hands in
front of him. Deputy Hackler and Sgt. Stewart had to put the handcuffs back on the
Defendant. Deputy Hackler testified that the Defendant began to “resist at that point”
and that they “advised him to stop resisting [but] he continued.” Deputy Hackler
described the Defendant‟s resistance as “[p]ulling, tugging away from [them], yelling,
screaming[,] . . . [and] [j]ust being disorderly and uncooperative.” The Defendant
submitted to the blood draw at the hospital and told Deputy Hackler and Sgt. Stewart that
he had been drinking liquor instead of beer that night.

        Based upon the foregoing, the jury convicted the Defendant of two counts of
resisting arrest and one count of driving a vehicle with an expired registration. The trial
court elected to hold a sentencing hearing on this matter. The Defendant‟s presentence
report revealed that he had prior misdemeanor convictions for two assaults, attempt to
commit custodial interference, simple possession, domestic violence, theft, possession of
alcohol by a person under twenty-one years old, and numerous traffic offenses. The
Defendant received his first conviction at the age of eighteen and was thirty-two at the
time of the sentencing hearing.

        The report showed that the Defendant had never had a probationary sentence
revoked. However, there had been four separate violation warrants issued against the
Defendant that were ultimately dismissed for various reasons. The majority of all of the
Defendant‟s prior sentences had been served on probation. For all of the Defendant‟s
prior convictions, he had only served forty-two days‟ incarceration. The Defendant
requested that the trial court grant him alternative sentences for his convictions. The
Defendant testified that he and his wife had recently separated and that he had custody of
their four children, who ranged in age from two to eleven.

        The trial court sentenced the Defendant to thirty days for the driving a vehicle with
an expired registration conviction and six months for each of the resisting arrest
convictions. The trial court ordered all three sentences to be served concurrently. The
trial court also denied the Defendant‟s request for alternative sentencing and ordered the
sentences to be served at seventy-five percent.
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        In denying alternative sentencing, the trial court placed great weight on the
Defendant‟s record of prior misdemeanor convictions. The trial court stated that the
Defendant “from the time he was [eighteen] until now [had] regularly committed
misdemeanor offenses” and had been given probationary sentences. Put another way, the
trial court found the fact that the Defendant had “been given a probated sentence after a
probated sentence from the time that he was [eighteen] years old . . . [until he was]
[thirty-two] years old” weighed against all of the other factors considered by the trial
court. The Defendant now appeals to this court.

                                       ANALYSIS

                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
convictions for resisting arrest. The Defendant argues that his actions did “not rise to the
level of force necessary to sustain a conviction for resisting . . . arrest.” The Defendant
also argues that Deputy Hackler “never mention[ed] Sgt. Stewart by name when
describing the actions” of the Defendant; therefore, the State failed to prove that the
Defendant resisted Sgt. Stewart. The State responds that the evidence was sufficient to
sustain the Defendant‟s convictions for resisting arrest.

       An appellate court‟s standard of review when the defendant questions the
sufficiency of the evidence 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 court does not reweigh the evidence, rather, it presumes that 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). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.
                                            -4-
       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant‟s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

        It is illegal for “a person to intentionally prevent or obstruct anyone known to the
person to be a law enforcement officer . . . from effecting a stop, frisk, halt, arrest or
search of any person, including the defendant, by using force against the law enforcement
officer . . . .” Tenn. Code Ann. § 39-16-602(a). Here, Deputy Hackler testified that the
Defendant attempted to kick the window out of Sgt. Stewart‟s patrol car and attempted
“to get his hands in front of him.” The Defendant was eventually successful in getting
his hands in front of himself, causing Deputy Hackler and Sgt. Stewart to have to
handcuff him again. Deputy Hackler testified that when they attempted to do this, the
Defendant began “[p]ulling, tugging away from [them], yelling, screaming[,] . . . [and]
[j]ust being disorderly and uncooperative.”

       This court has previously held that actions similar to the Defendant‟s amounted to
sufficient force to support a conviction for resisting arrest. See State v. Jeremy D. Parvin,
No. E2014-01569-CCA-R3-CD, 2015 WL 2128585, at *3 (Tenn. Crim. App. May 6,
2015) (the defendant “withdrew his wrist, made a fist, and then struggled to avoid having
his hands cuffed”), perm. app. denied (Tenn. Aug. 13, 2015); State v. Jonathan Lamont
Jones, No. W2011-02311-CCA-R3-CD, 2012 WL 4057263, at *3 (Tenn. Crim. App.
Sept. 17, 2012) (the defendant pulled “his hands away from” the arresting officers and
“continued to resist the officers when they attempted to handcuff him”); State v. Mary
Margaret Boyd, No. M2004-00580-CCA-R3-CD, 2005 WL 885091, at *3 (Tenn. Crim.
App. Apr. 15, 2005) (the defendant resisted officers by “„twisting, turning and pulling
away‟”). Accordingly, we conclude that the Defendant‟s actions rose to the level of force
necessary to sustain a conviction for resisting arrest.

        With respect to the Defendant‟s argument regarding his conviction for resisting
Sgt. Stewart, the record belies his assertion that the State failed to prove that the
Defendant resisted Sgt. Stewart. Deputy Hackler testified that he went to the Defendant‟s
home with Sgt. Stewart and a local constable. However, Deputy Hackler also testified
that the Defendant was placed in Sgt. Stewart‟s patrol car upon his arrest and that he was
following behind Sgt. Stewart‟s patrol car when it stopped a short distance from the
Defendant‟s house. Deputy Hackler further testified that he saw the Defendant attempt to


                                             -5-
kick the window out of Sgt. Stewart‟s patrol car. Deputy Hackler approached Sgt.
Stewart‟s patrol car and helped to re-handcuff the Defendant.

       Deputy Hackler testified that “we” removed the Defendant from the patrol car and
that the Defendant resisted by pulling away from “us.” However, Deputy Hackler made
no mention of the constable during this portion of his testimony, and it was a reasonable
inference for the jury to conclude that Deputy Hackler was referring to himself and Sgt.
Stewart. Accordingly, we conclude that the evidence was sufficient to sustain both of the
Defendant‟s convictions for resisting arrest.

                            II. Denial of Alternative Sentencing

        The Defendant contends that the trial court erred in denying his request for
alternative sentencing. The Defendant argues that the trial court erred in placing great
weight on his record of prior misdemeanor convictions. While the Defendant admits to
having “fourteen misdemeanor convictions,” he argues that over half of them are for
traffic offenses and that a significant portion of the convictions “are over [ten] years old.”
The Defendant further argues that the trial court did not place sufficient weight on his
“social history,” chiefly, the fact that he had recently separated from his wife and had
custody of their four children. The State responds that the trial court did not abuse its
discretion in denying the Defendant‟s request for alternative sentencing.

       The standard of review for “questions related to probation or any other alternative
sentence” is an abuse of discretion “accompanied by a presumption of reasonableness.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This court has previously applied
the same standard of review to misdemeanor sentencing cases. See State v. Christopher
Dewayne Henson, No. M2013-01285-CCA-R3-CD, 2015 WL 3473468, at *5 (Tenn.
Crim. App. June 2, 2015) (citing our supreme court‟s statement in State v. King, 432
S.W.3d 316, 324 (Tenn. 2014), that this standard applies to “all sentencing decisions”),
perm. app. denied (Tenn. Sept. 17, 2015).

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-
35-302, which provides that the trial court shall impose a specific sentence consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. Tenn.
Code Ann. § 40-35-302(b). A separate sentencing hearing is not required in
misdemeanor sentencing, but the trial court must “allow the parties a reasonable
opportunity to be heard on the question of the length of any sentence and the manner in
which the sentence is to be served.” Tenn. Code Ann. § 40-35-302(a).

        Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. See State v. Troutman, 979 S.W.2d 271, 273
(Tenn. 1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). Unlike the
                                             -6-
felony sentencing statute, which requires the trial court to place its findings on the record,
the misdemeanor sentencing statute merely requires the trial court to “consider the
principles of sentencing and enhancement and mitigating factors.” Troutman, 979
S.W.2d at 274. Defendants convicted of misdemeanors are not presumed eligible for
alternative sentencing. State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995).

       A defendant seeking an alternative sentence bears the burden of showing that such
a sentence will “„subserve the ends of justice and the best interest of both the public and
the defendant.‟” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting
Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to alternative
sentencing consideration are the circumstances of the offense, the defendant‟s criminal
record, social history, and present condition, the deterrent effect upon the defendant, and
the best interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978).

      In addressing a defendant‟s suitability for alternative sentencing, the trial court
should also consider whether:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) 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 offense; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant‟s
potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial
court should impose a sentence that is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       Here, the trial court conducted a detailed and lengthy analysis which addressed the
factors listed above prior to denying the Defendant‟s request for an alternative sentence.
The trial court was troubled by the fact that the Defendant had a lengthy record of
misdemeanor convictions and that measures less restrictive than confinement had
frequently been applied to the Defendant, yet he continued to commit new offenses.
                                             -7-
Contrary to the Defendant‟s argument, the trial court specifically stated that it considered
the Defendant‟s “social history.” With respect to the Defendant‟s argument regarding the
age of his convictions, a trial court may consider the amount of time that has passed since
a prior conviction, but it is not required to do so. State v. Charles Hamlin, No. M1999-
01970-CCA-R3-CD, 2000 WL 1208314, at *2 (Tenn. Crim. App. Aug. 24, 2000). Based
upon the record before us, we cannot conclude that the trial court abused its discretion in
denying the Defendant‟s request for alternative sentencing.

                                     CONCLUSION

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



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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