                                                   FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE
                                                     June 30, 1999
                         APRIL 1999 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )
            Appellee,            )      C.C.A. No. 01C01-9807-CC-00288
                                 )
vs.                              )      Williamson County
                                 )
DANIEL M. TIDWELL,               )      Hon. Donald P. Harris, Judge
                                 )
            Appellant.           )      (Resisting Arrest)



FOR THE APPELLANT:                      FOR THE APPELLEE:

J. TIMOTHY STREET                       MICHAEL E. MOORE
136 Fourth Ave., South                  Solicitor General
Franklin, TN 37064
                                        KIM R. HELPER
                                        Assistant Attorney General
                                        425 Fifth Ave. N., 2d Floor
                                        Nashville, TN 37243-0493

                                        JOSEPH D. BAUGH, JR.
                                        District Attorney General

                                        LEE DRYER
                                        Assistant District Attorney
                                        P.O. Box 937
                                        Franklin, TN 37065-0937




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                              OPINION
                The defendant, Daniel M. Tidwell, appeals from his conviction for

resisting arrest,1 a Class B misdemeanor, in the Williamson County Circuit Court.

The trial court imposed a sentence of six months to be suspended after serving ten

days in the local jail. In this direct appeal, the defendant challenges the sufficiency

of the evidence and the manner of service of his sentence. After a review of the

record, the briefs of the parties, and the applicable law, we affirm the judgment of

the trial court.



                The resisting arrest conviction arises from a 911 call placed from the

defendant’s home. The defendant’s wife requested assistance at their home

because the defendant had hit her. When police officers arrived, the defendant

locked himself in his house. The officers tried to contact the defendant by calling

him on the telephone and talking to him through bullhorns and a patrol car’s public

address system. The defendant did not respond to any of these attempts. Once

the officers learned from the defendant’s wife that the defendant had medical

problems, Captain Ricky Watson decided to force entry into the house without

obtaining an arrest warrant or search warrant. The officers found the defendant in

the front bedroom of the home lying with his back to the officers. The officers

advised the defendant that he was under arrest. As the officers attempted to

handcuff the defendant, he “flailed” his arms and struggled with the officers. The

defendant complained of chest pain, and the officers removed the handcuffs. He

refused medical attention; therefore, the officers cuffed his hands in the front of his

body. From this evidence, the court found the defendant guilty of resisting arrest.



                                           I.

                The defendant contends that there is insufficient proof of force to



       1
           Tenn. Code Ann. § 39-16-602(a) (1997).

                                           2
sustain his conviction for resisting 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); Tenn. R. App. P. 13(e).

This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).



              In determining the sufficiency of the evidence, this court should 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 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 (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.



              Resisting arrest is “intentionally prevent[ing] or obstruct[ing] 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 or another.” Tenn. Code Ann. § 39-16-602(a) (1997).

Force is defined as “compulsion by the use of physical power or violence and shall

be broadly construed to accomplish the purposes of this title.” Tenn. Code Ann. §

                                          3
39-11-106(a)(12) (1997).



              The defendant contends that waving his arms while the officers

attempted to handcuff him does not constitute the force necessary to sustain a

conviction for resisting arrest. According to the defendant, this case is analogous

to State v. Corder, 854 S.W.2d 653 (Tenn. Crim. App. 1992). In Corder, the

defendant “refused to get into the patrol car and used obscene language at the

officers.” Corder, 854 S.W.2d at 655. This was insufficient proof of force, and the

conviction for resisting arrest was dismissed. Id.



              We find this case to be more analogous to State v. William Randy

Jackson, No. 02C01-9405-CC-00097 (Tenn. Crim. App., Jackson, Mar. 1, 1995)

and State v. Ronald David Lee, No. 03C01-9410-CR-00393 (Tenn. Crim. App.,

Knoxville, July 6, 1995). In William Randy Jackson, the defendant barricaded

himself inside a house and refused to leave the house. William Randy Jackson, slip

op. at 3. The officers used tear gas to force the defendant out of the house. Id. In

order to handcuff the defendant, the officers had to gain physical control over him.

Id. The main difference between this case and William Randy Jackson is that

Jackson possessed a weapon. However, this court considered the facts that

Jackson barricaded himself in a house and refused to follow instructions once he

was forced outside the house in affirming his conviction for resisting arrest. Id. at

5. In Ronald David Lee, the defendant “wrestled” and struggled with the officer

attempting to handcuff him and had to be forced into the police car. Ronald David

Lee, slip op. at 3. In affirming the conviction, this court found the evidence

supported the finding that the defendant used force to resist arrest because the

officer had to “wrestle” with the defendant to handcuff him. Id. at 7.



              The state cites State v. Edward Iroghuehi Isibor, No. 01C01-9610-CC-

                                         4
00441 (Tenn. Crim. App., Nashville, Sept. 30, 1997), to support its argument that

waving the arms and struggling with a police officer to prevent from being

handcuffed is sufficient force to sustain a conviction for resisting arrest. In Isibor,

the defendant struggled and flailed his arms to avoid being handcuffed. Id., slip op.

at 5. The officer had to spray the defendant with “Freeze” to subdue him. Id. This

court found the evidence sufficient to support the conviction for resisting arrest. Id.



              In this case, the defendant locked himself inside his residence and

refused to respond to the officers’ attempts to ascertain his condition and to

investigate a possible assault crime. When officers forced entry and attempted to

handcuff the defendant, he flailed his arms and struggled with the officers. In the

light most favorable to the state, the defendant used sufficient force to support a

conviction for resisting arrest.2



                                          II.

              The defendant challenges the imposition of a period of confinement.

In determining whether the trial court has properly sentenced an individual, this

court engages in a de novo review of the record with a presumption that the trial

court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). In

conducting our de novo review, we must consider the evidence at sentencing, the

presentence report, the sentencing principles, the arguments of counsel, the

statements of the defendant, the nature and characteristics of the offense, any

mitigating and enhancement factors, and the defendant’s amenability to

rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann. §



       2
         In the defendant’s brief, the defendant argues that an arrest warrant or
search warrant should have been obtained. The legality of the arrest is not
relevant to the determination of whether the defendant committed the offense of
resisting arrest, unless the defendant is claiming self defense against excessive
force from officers. See Tenn. Code Ann. §§ 39-16-602(b), -11-611(e) (1997).

                                          5
40-35-103(5) (1997). On appeal, the appellant has the burden of showing that the

sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing

Comm'n Comments (1997).



              In felony sentencing, the trial court has an affirmative duty to state in

the record, either orally or in writing, which enhancement and mitigating factors it

found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code

Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn.

1998). In contrast, the misdemeanor sentencing statute only requires that the trial

court consider the enhancement and mitigating factors when calculating the

percentage of the sentence to be served "in actual confinement" prior to

"consideration for work release, furlough, trusty status and related rehabilitative

programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at

274.



              In determining whether to grant probation, the judge must consider the

nature and circumstances of the offense, the defendant’s criminal record, their

background and social history, their present condition, including their physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best interests of both the public and the defendant. Stiller

v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bears the burden of

establishing suitability for probation, even when the defendant is presumed to be

eligible for probation. See Tenn. Code Ann. §§ 40-35-303(a)-(b) (1997).



              The defendant contends that the trial judge did not make findings on

the record regarding the applicable enhancement or mitigating factors; therefore,

the presumption of correctness should not apply. The trial judge’s findings were

brief; however, the judge is not required to state findings on the record regarding the

                                          6
applicable enhancement or mitigating factors in misdemeanor sentencing.3 See

Troutman, 979 S.W.2d at 274; State v. Clinton E. Key, No. 01C01-9805-CR-00229,

slip op. at 3 (Tenn. Crim. App., Nashville, Apr. 20, 1999). As such, the lack of

detailed findings is not a basis to remove the presumption of correctness of a

misdemeanor sentence. See State v. Lauren E. Leslie and Janie Whitehead, No.

03C01-9804-CR-00125, slip op. at 4 (Tenn. Crim. App., Knoxville, Mar. 23, 1999).



              The record of the case at bar reflects that the trial court considered the

relevant sentencing principles and considerations. Accordingly, its determination

is entitled to the presumption of correctness.



              In determining the sentence, the trial court found that the defendant

had no prior criminal record. The trial court voiced concern over threats the

defendant made to police officers under oath during the General Sessions trial in

this matter. As an aside, the trial judge stated that the arrest was illegal, but the

officers thought it was best to force entry into the defendant’s home.



              We conclude that the trial court did not err in imposing ten days

confinement prior to probation. In deciding whether to grant probation, the trial

judge must consider the best interests of both the public and the defendant. See

Stiller, 516 S.W.2d at 620. The fact that the defendant made threats to police

officers while under oath at his General Sessions trial supports the trial judge’s

imposition of ten days confinement.


       3
        In oral argument, the defendant contended that Troutman only applies to
DUI cases. However, this court has applied Troutman to other misdemeanor
cases. See, e.g., State v. Steve A. Baggett, No. 01C01-9710-CC-00464, slip op.
at 3 (Tenn. Crim. App., Nashville, May 4, 1999) (reckless driving); State v. Robert
Patton, No. 03C01-9711-CC-00502, slip op. at 5 (Tenn. Crim. App., Knoxville,
Apr. 28, 1999) (assault); State v. Dion Andres Russell, No. 03C01-9803-CR-
00092, slip op. at 14 (Tenn. Crim. App., Knoxville, Apr. 7, 1999) (resisting arrest,
evading arrest and inciting to riot).

                                          7
               In consideration of the foregoing and the record as a whole, we affirm

the trial court.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
JOHN H. PEAY, JUDGE



_______________________________
DAVID H. WELLES, JUDGE




                                          8
