        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 March 27, 2012 Session

             STATE OF TENNESSEE v. EDDIE JOE WHITAKER

             Direct Appeal from the Criminal Court for Campbell County
                       No. 14225     E. Shayne Sexton, Judge




                 No. E2011-01372-CCA-R3-CD - Filed October 3, 2012


Defendant, Eddie Joe Whitaker, was indicted by the Campbell County Grand Jury for driving
under the influence (DUI). Following a jury trial, Defendant was convicted as charged and
sentenced by the trial court to 11 months and 29 days to be served at 75 percent incarceration.
Defendant appeals his conviction and sentence and asserts: 1) the evidence at trial was
insufficient to support his conviction; and 2) his sentence was excessive. Finding no error,
we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Michael G. Hatmaker and Brent Gray, Jacksboro, Tennessee, for the appellant, Eddie Joe
Whitaker.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William Paul Phillips, District Attorney General; and Natasha Wassom, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

Facts

       On June 19, 2009, around 8:00 p.m., Officer Susan Sowder, of the LaFollette Police
Department, was parked at the Tennessee welcome center on I-75 to watch for Defendant’s
vehicle because she had been alerted that it was a possible “drunk driver.” When she saw
the vehicle, a white tow truck with “Whitaker Towing” written on the side, she followed it.
Officer Sowder testified that Defendant was driving at a slow rate of speed, and he crossed
the white line twice before exiting the interstate. Officer Sowder observed the vehicle cross
the white line again on the exit ramp, and she activated her lights and siren. Defendant did
not stop, but instead proceeded to drive to a Shell gas station in Jellico a short distance from
the exit. Officer Sowder observed Defendant’s vehicle stop in the path of oncoming traffic
when he turned left into the gas station.

        Officer Sowder stopped and instructed Defendant to stay inside his vehicle, but he
exited his vehicle instead. Officer Sowder approached Defendant and asked for his driver’s
license, insurance, and registration. Defendant “was kind of leaning on the truck” and
“fumbling through some cards.” He handed Officer Sowder an insurance card for another
vehicle, and she handed it back to him. Defendant then handed Officer Sowder “a stack of
cards” and asked her to find it, saying “he couldn’t see enough to get it.” Officer Sowder
located Defendant’s driver’s license and insurance card. She asked Defendant if he had been
drinking or if he had taken any medication, and Defendant stated that he had not. Officer
Sowder noticed that Defendant’s eyes were bloodshot and his speech was slurred. While
Officer Sowder was searching through Defendant’s cards, Defendant offered to submit to a
blood alcohol test. He also told her that he had a scanner in his truck, and he knew that he
was going to be pulled over. Officer Sowder did not smell any alcohol. She testified that
Defendant’s behavior was consistent with the use of “a narcotic or Methadone, something
that altered his thinking, made him drowsy.”

       Officer Sowder asked Defendant to perform two field sobriety tests. She asked him
to perform the nine-step walk and turn and the one-leg stand. Defendant stated that he did
not have any medical condition that would prevent him from performing the tests. Officer
Sowder testified that Defendant performed “very poorly” on both tests, exhibiting six of the
eight clues of intoxication in the walk and turn and three of the four clues of intoxication in
the one-leg stand. Defendant’s behavior during the field sobriety tests went “from being
agitated to borderline crying and wiping tears.” Based on Defendant’s performance on the
field sobriety tests, his driving, and his appearance, Officer Sowder determined that
Defendant was impaired, and she placed him under arrest. Defendant was “very aggravated”
and was “rambling” that Officer Sowder was harassing him and that he was going to sue
Officer Sowder. While Officer Sowder was transporting Defendant to the police department,
Defendant “cried and said [she] was picking on him.” At the police station, Officer Sowder
read an implied consent form to Defendant, but Defendant refused to sign the form.
Defendant also refused to submit to a blood alcohol test because “he was afraid of needles.”
Officer Sowder did not find any alcohol or drugs inside Defendant’s vehicle or on his person.

        Officer Jeff Ivey testified that he responded to a call to assist Officer Sowder at the
Shell station. When Officer Ivey arrived, Defendant had already performed the field sobriety

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tests and had been placed under arrest. Officer Sowder patted down Defendant and placed
him inside the patrol car. Officer Ivey did not find any drugs or weapons on Defendant’s
person. Officer Sowder observed that Defendant appeared “kind of sleepy, droopy eyes, kind
of watery eyed, kind of heavy tongue[d], a little bit unsteady.” Officer Ivey testified that
Defendant did not smell of alcohol. Officer Ivey followed Officer Sowder to the police
station and did another search of Defendant during booking. Officer Ivey was present when
Officer Sowder read the implied consent form to Defendant. He testified that Defendant
initially agreed to submit to a blood alcohol test but later refused to sign the implied consent
form. Officer Ivey did not have video equipment in his patrol car on the date of the incident.

        Wilma Whitaker, Defendant’s sister-in-law, testified on behalf of Defendant. Ms.
Whitaker testified that she had been married to Defendant’s brother for 32 years and that she
knew Defendant well. She testified that she was working at the Shell Station on the night
of the incident. At approximately 6:00 or 7:00 p.m., Defendant bought gasoline there for his
tow truck. Ms. Whitaker spoke to Defendant, and she testified that he did not appear to be
intoxicated. Defendant stated that he was going to pick up a vehicle. Ms. Whitaker was still
working later that evening when she saw Defendant pull into the parking lot followed by a
police car. She saw Defendant get out of his truck and talk to Officer Sowder. Ms. Whitaker
testified that she did not see Defendant stumble or lean against his truck. She testified that
she did not hear anything that Defendant and Officer Sowder said. She called her husband,
and he arrived shortly thereafter.

       Clyde Whitaker, Defendant’s brother, testified that he drove to the Shell station after
he received a call from his wife. He watched Defendant perform a field sobriety test. Mr.
Whitaker testified that Defendant did not stumble and that he “didn’t see nothing [sic] out
of the ordinary.” He testified that it “seemed to [him] that [Defendant] was sober.” Mr.
Whitaker saw Defendant perform three field sobriety tests, “nose, walking, [and] bumper.”
After Defendant was placed under arrest, Mr. Whitaker asked Officer Sowder if he could
drive Defendant’s truck home. He testified that Officer Sowder stated “if [he] didn’t want
to go to jail, [he] better go on about [his] business.” He testified that she also stated that
“[the] Whitakers thought [they] owned the town and she would prove it different.” Mr.
Whitaker left the gas station before Officer Ivey arrived. On cross-examination, Mr.
Whitaker testified that he was “a good little distance away” from Defendant and Officer
Sowder when he watched Defendant perform the field sobriety tests, and he acknowledged
that he had no training in field sobriety tests.

       Officer Sowder testified in rebuttal that Mr. Whitaker did not approach her and she
did not have a conversation with him. She also testified that Defendant performed the
Horizontal Gaze Nystagmus (HGN) test in addition to the two field sobriety tests she testified
about on direct examination. She testified that she “gave [Defendant] two physical tests, one

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HGN,” and that she had not included the HGN in her direct examination testimony because
she is not an expert on the HGN, and she believed that she was “not allowed to testify” about
it.

       Defendant did not testify or offer any other proof at trial.

Sentencing

        At the sentencing hearing, Officer Sowder testified that on August 10, 2010, after
Defendant was convicted and his license revoked, she and Officer Cody Frazier were
standing outside of the courthouse when they saw Defendant drive by in an orange pickup
truck. She verified that Defendant’s driver’s license had been revoked and confronted
Defendant. She directed Defendant to forfeit his driver’s license to the County Clerk’s
office.

        On September 6, 2010, Officer Sowder, while off-duty, saw Defendant driving again,
and she informed the police department. On cross-examination, Officer Sowder testified that
she did not issue a citation to Defendant on either occasion because on August 10, 2010, an
employee at the County Clerk’s office informed her that because Defendant’s license had not
been forfeited, “the system . . . still showed he had a [valid] driver’s license,” and on
September 6, 2010, she was off-duty and her son was with her. The State also introduced
certified copies of judgments of convictions indicating that Defendant had four prior felony
convictions and two prior misdemeanor convictions.

       At the conclusion of the sentencing hearing, the trial court found that

        [b]ased on [Defendant’s] long history of criminal conduct and based upon
        the fact that measures less restrictive than confinement have been frequently
        or recently – or frequently provided – applied unsuccessfully to this
        defendant, this Court is going to grant the State’s request to find – to
        sentence the defendant to 11 months, 29 days which is the maximum
        punishment.

        The trial court stated, “this particular conviction might suggest 11/29 with a minimum
mandatory, but [Defendant’s] history does not.” The trial court also gave “some weight” to
Defendant’s “behavior since the time of the conviction . . . that he has continued to break the
law. . . .” Finally, the trial court imposed the maximum fine of $1,500.

Analysis



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I.     Sufficiency of the evidence

       Defendant asserts that the evidence at trial was insufficient to convict him of DUI.
Our standard of review when a defendant challenges 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). This rule 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). In the absence of direct evidence, a
criminal offense may be established exclusively by circumstantial evidence. Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial
evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).
“The standard of review [for sufficiency of the evidence] is the same whether the conviction
is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        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). Questions
regarding witness credibility, conflicts in testimony, and the weight and value to be given to
evidence were resolved by the jury. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.1973). The
Tennessee Supreme Court stated the rationale for this rule:

        This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their
        demeanor on the stand. Thus the trial judge and jury are the primary
        instrumentality of justice to determine the weight and credibility to be given
        to the testimony of witnesses. In the trial forum alone is there human
        atmosphere and the totality of the evidence cannot be reproduced with a
        written record in this Court.

       This Court must afford the State the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the
evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Smith, 24

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S.W.3d 274, 279 (Tenn. 2000)). “Because a verdict of guilt removes the presumption of
innocence and imposes a presumption of guilt, the burden shifts to the defendant upon
conviction to show why the evidence is insufficient to support the verdict.” State v. Thacker,
164 S.W.3d 208, 221 (Tenn. 2005).

      The Defendant was convicted of DUI in violation Tennessee Code Annotated section
55-10-401. The statute states, in pertinent part:

         (a) 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 while on the premises
         of any shopping center, trailer park or any apartment house complex, or any
         other premises which is generally frequented by the public at large, while:

         (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug
         producing stimulating effects on the central nervous system; . . . .

Tenn. Code Ann. § 55-10-401(a)(1).

        The evidence, viewed in the light most favorable to the State, shows that Defendant
was driving his tow truck at a slow rate of speed on I-75 and that he crossed the white line
twice. As he exited the interstate, he crossed the white line again. Officer Sowder activated
her emergency lights, and Defendant did not immediately stop his vehicle. He instead
continued driving and crossed over two lanes of oncoming traffic to stop at a gas station.
Officer Sowder observed Defendant stop his vehicle in the lanes of oncoming traffic.
Contrary to Officer Sowder’s instruction to stay in the vehicle, Defendant exited his vehicle
and leaned against it. When Officer Sowder asked Defendant for his driver’s license,
registration, and proof of insurance, Defendant fumbled through a stack of cards and
produced an insurance card for another vehicle before handing the cards to Officer Sowder
to search through. Officer Sowder observed that Defendant’s eyes were bloodshot, his
speech was slurred, and he appeared drowsy. Officer Ivey also observed that Defendant
appeared sleepy, spoke with a “heavy tongue,” and was unsteady on his feet. Defendant’s
poor performance on two field sobriety tests indicated that he was intoxicated. Defendant
refused to submit to a blood alcohol test, and he refused to sign the implied consent form.

        Defendant argues that Officer Sowder’s testimony was “inconsistent” and refuted by
the testimony of other witnesses. Defendant attacks Officer Sowder’s credibility, pointing
to her testimony: 1) that the Shell station is located to the left of the exit ramp on I-75, while
two other witnesses testified that it was to the right; 2) that she and Defendant were the only
ones present at the scene, while two other witnesses testified that they were also present at

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the gas station; and 3) that Defendant stumbled when he was performing the field sobriety
tests, while two other witnesses testified that Defendant did not stumble.

       We note that it is the jury’s prerogative to evaluate and weigh the evidence. Any
alleged inconsistent statements and credibility issues were brought out on direct and/or
cross-examination. The weight and credibility of the testimony of a witness and the
reconciliation of conflicts in testimony, if any, are matters entrusted exclusively to the jury.
By its verdict, the jury exercised its prerogative and chose to accredit the testimony of the
State’s witnesses. It is the jury who is charged with making credibility determinations, not
this Court. Smith, 24 S.W.3d at 278. It is not the function of this Court to reweigh the
credibility of witnesses on appeal. Id. at 278–79. There was sufficient evidence to support
a jury finding that the Defendant was guilty of DUI. We will not disturb their decision.
Defendant is not entitled to relief on this issue.

II.    Length of sentence

       Defendant contends that his sentence is excessive. Defendant complains that the trial
court erred by ordering him to serve 75 percent of his 11 months and 29 days sentence in
confinement.

        When a defendant challenges the length, range, or manner of service of a sentence,
this Court conducts a de novo review with a presumption of correctness. Tenn. Code Ann.
§ 40-35-401(d). The sentence is presumed correct if the record affirmatively shows 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 defendant has the burden of showing
that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission
Comments. Our review of the record reflects that the trial court considered the sentencing
principles and all relevant facts and circumstances, and as such our review is de novo with
a presumption of correctness. See Tenn.Code Ann. § 40-35-401(d); Ashby, 823 S.W.2d at
169.

      Sentencing for DUI convictions is controlled by Tennessee Code Annotated §
55-10-403(a)(1). For a first offense DUI, a defendant must receive a sentence of
confinement of not less than 48 hours and not more than 11 months and 29 days. See Tenn.
Code Ann. § 55-10-403(s)(1). The statute further provides that:

        all persons sentenced under subsection (a) shall, in addition to the service
        of at least the minimum sentence, be required to serve the difference
        between the time actually served and the maximum sentence on probation.



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Tenn. Code Ann. § 55-10-403(c). Accordingly, the length of a defendant’s sentence for DUI
is set at 11 months and 29 days, the maximum sentence, 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 to probation. See State v. Troutman, 979 S.W.2d 271,
273 (Tenn. 1998); State v. Combs, 945 S.W.2d 770 (Tenn. Crim. App. 1996).

       While otherwise entitled to the same considerations under the Sentencing Reform Act,
unlike a felon, a defendant convicted of a misdemeanor is not entitled to the presumption of
a minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995).
Rather, in sentencing a misdemeanor defendant, the trial court shall fix a percentage of the
sentence that the defendant must serve in confinement before being eligible for release into
rehabilitative programs. Tenn. Code Ann. § 40-35-302(d). A DUI offender, however, may
be required to serve up to 100 percent of his or her sentence. State v. Palmer, 902 S.W.2d
391, 393-94 (Tenn. 1995); see also Tenn. Code Ann. § 55-10-403(m) (“Nothing in . . . the
Sentencing Reform Act of 1989, shall be construed as altering, amending, or decreasing the
penalties established in this section for the offense of driving under the influence of an
intoxicant.”). In determining the percentage of the sentence to be served in confinement, the
court must consider the principles of sentencing and the appropriate enhancement and
mitigating factors, and the court must not impose such percentages arbitrarily. See Tenn.
Code Ann. § 40-35-302(d); Troutman, 979 S.W.2d at 274.

       In determining if incarceration is appropriate, a trial court considers: (1) the need to
protect society by restraining a defendant having a long history of criminal conduct; (2) the
need to avoid depreciating the seriousness of the offense; (3) whether confinement is
particularly appropriate to effectively deter others likely to commit similar offenses; and (4)
whether less restrictive measures have often or recently been unsuccessfully applied to the
defendant. Tenn. Code Ann. § 40-35-103(1); see also Ashby, 823 S .W.2d at 169; State v.
Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920 S.W.2d 267,
270 (Tenn. Crim. App. 1995).

        In this case, the trial court ordered that Defendant serve 75 percent of his sentence,
or 273 days, in confinement. In sentencing the defendant, the trial court placed great
emphasis on Defendant’s prior record. Defendant’s prior felony and misdemeanor
convictions were the basis of the trial court’s decision to increase Defendant’s incarceration
above the 48-hour minimum. At the time of sentencing, Defendant had one prior federal
conviction for unlawful possession of a firearm; three prior state felony convictions: one for
aggravated assault, another for possession of a Schedule II controlled substance with intent
to sell or deliver, and a third for possession of marijuana with intent to sell or deliver; and
two prior misdemeanor convictions for possession of marijuana in1995 and in 1998. The
trial court also stated in its findings that other less restrictive measures had been applied

                                              -8-
unsuccessfully to Defendant and the court noted that Defendant had continued to drive after
his driver’s license was revoked.

       Defendant does not suggest any mitigating factors that the trial court failed to
consider. Based upon Defendant’s prior record, the trial court denied full probation to
Defendant after service of the statutory minimum incarceration of 48 hours for a first offense
DUI. After review, we hold that the trial court did not err. The trial court stated its reasons
on the record for sentencing Defendant above the statutory minimum, and we conclude that
the sentence imposed by the trial court is neither excessive nor inconsistent with the
sentencing principles. Defendant is not entitled to relief on this issue.

                                      CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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