         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE        FILED
                         AUGUST 1999 SESSION
                                                   September 24, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9812-CC-00486
      Appellee,                     )
                                    )    BEDFORD COUNTY
VS.                                 )
                                    )    HON. CHARLES LEE,
TROY RANDALL JOHNSON,               )    JUDGE
                                    )
      Appellant.                    )    (Joyriding, DUI, Driving On Revoked
                                    )     License)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GREGORY D. SMITH                         PAUL G. SUMMERS
Contract Appellate Defender              Attorney General and Reporter
One Public Square, Suite 321
Clarksville, TN 37040                    CLINTON J. MORGAN
(On Appeal)                              Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
ANDREW JACKSON DEARING III               425 Fifth Avenue North
Assistant Public Defender                Nashville, TN 37243-0493
105 South Main
P.O. Box 1119                            W. MICHAEL McCOWN
Fayetteville, TN 37334-1119              District Attorney General
(At Trial and On Appeal)
                                         ROBERT G. CRIGLER
                                         Assistant District Attorney General
                                         One Public Square, Suite 100
                                         Shelbyville, TN 37160-3953




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY, JUDGE
                                     OPINION



       A Bedford County Grand Jury indicted defendant, Troy Randall Johnson, for

theft of property over $1000, driving under the influence (DUI) third offense, and

driving on a revoked driver’s license (DORL) third offense. After a jury trial, he was

convicted of joyriding, DUI third offense, and DORL third offense, all Class A

misdemeanors. The trial court sentenced defendant to an effective sentence of

nineteen months and fifteen days. On appeal, defendant challenges: (1) the

sufficiency of the evidence, and (2) his sentences. After a thorough review of the

record, this Court MODIFIES the sentence for DUI to conform to the statutory

requirement, but AFFIRMS the trial court’s judgment in all other respects.




                                       FACTS



       In the early morning hours of January 9, 1998, defendant was involved in a

one-vehicle accident off Highway 64 in Bedford County.            Law enforcement

personnel responded to the scene and found local farmer Chuck Hawkins’ 1992

GMC pickup at the bottom of a ravine. The truck had rolled several times, and the

injured defendant was found on the ground about fifteen feet beyond the truck’s

resting place. Sheriff’s deputies found beer cans at the scene and smelled alcohol

about defendant’s person.



       At trial, the state presented proof that defendant’s license was in a revoked

status. The state’s witnesses all testified that defendant was the only person in the

vicinity of the accident. Truck owner Hawkins testified that defendant, who worked

for him sporadically for eight or nine months preceding the accident, did not have

permission to use the truck at any time. The medical lab technician from the




                                          2
hospital, where defendant was taken for his injuries, testified that the ethanol

content of defendant’s blood was above the “toxic” level. 1



       The defendant presented no proof at trial.




                        SUFFICIENCY OF THE EVIDENCE



       Defendant challenges the sufficiency of the evidence used to convict him of

joyriding, DUI, and DORL. Specifically, defendant argues that the evidence against

him was purely circumstantial and failed to establish beyond a reasonable doubt

that he was the driver of Hawkins’ truck.



       When an appellant challenges the sufficiency of the evidence, the standard

of review is whether, after viewing the evidence in the light most favorable to the

state, 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, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.

1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

This Court will not reweigh the evidence, reevaluate the evidence, or substitute its

evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d

93, 95 (Tenn. Crim. App. 1995).



       Although the evidence of defendant’s guilt is circumstantial in nature,

circumstantial evidence alone may be sufficient to support a conviction. State v.

Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Buttrey, 756 S.W.2d 718,


       1
        The testimony showed defendant’s blood ethanol content to be 165 mg/deciliter
which the technician described as “high.” She further testified that a level between 50
and 100 mg/deciliter is considered “toxic.”

                                           3
721 (Tenn. Crim. App. 1998).       However, for this to occur, the circumstantial

evidence must be consistent with guilt of the accused, inconsistent with innocence,

and must exclude every other reasonable theory or hypothesis except that of guilt.

Tharpe, 726 S.W.2d at 900. While following the above guidelines, this Court must

remember that the jury decides the weight to be given to circumstantial evidence

and that “[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.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.

1958); see also State v.Carter, 970 S.W.2d 509, 515 (Tenn. Crim. App. 1997).



       In this instance, the proof showed that defendant did not have permission to

use Chuck Hawkins’ GMC pickup. It also showed defendant was the only person

found at the scene of a one-vehicle accident involving Hawkins’ pickup. There were

beer cans in the truck’s proximity, and the ethanol level in defendant’s blood stream

was “toxic.” Based upon this evidence, the jury chose to convict defendant of

joyriding, DUI, and DORL.



       Deputy Body Keele testified as follows:


       DEFENSE
       COUNSEL: . . . Is [defendant] on the other side of the
                truck, away from the road, or is he close
                to the road?

       KEELE:        Highway 64 runs east and west. The
                     vehicle came to a stop facing south. The
                     rear of the truck was facing north.
                     [Defendant] was to the north before you
                     got to the truck, about ten to fifteen foot
                     (sic).

       DEFENSE
       COUNSEL: . . . was [defendant] close to the road?

       KEELE:        He was further away from the road than
                     the vehicle was.


       Defendant claims that this testimony proves he was found near the

passenger side of the truck which is contrary to the premise that he drove the truck.



                                         4
Thus, defendant argues, “the evidence . . . just as strongly supports the conclusion

that the truck in question hit [him], or that [he] was a passenger in said vehicle as

it does that [he] was the driver.” Our reading of this particular testimony does not

lead us to the same conclusion suggested by defendant.2



         The weight to be given circumstantial evidence and the inferences to be

drawn from such evidence were questions for the jury. The jury in this case found

the evidence consistent with defendant’s guilt, and the trial court declared the

evidence “overwhelming” in its denial of defendant’s motion for a new trial.



         This Court will not reweigh nor reevaluate the evidence. The evidence was

sufficient to support defendant’s convictions. This issue is without merit.




                                     SENTENCING



         In his second issue, defendant challenges the misdemeanor sentences

imposed by the trial court as “excessive under the facts and circumstances of this

case.”



         At the sentencing hearing, defendant’s criminal history was introduced into

evidence without objection. Defense counsel stipulated to two prior DUI and two

prior DORL convictions. The trial court sentenced defendant to ten months for

joyriding, nine months and fifteen days for DUI, and nine months and fifteen days

for DORL. The court ordered the DUI and DORL sentences to run concurrently with

each other but consecutively to the joyriding charge.




         2
         If defendant were found near the passenger side of the truck, we note that the
truck rolled over anywhere from two to four times. The location where defendant was
found would not be determinative of this issue.

                                            5
       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

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



       Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302,

which provides in part that the trial court shall impose a specific sentence consistent

with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See

State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender

must be sentenced to an authorized determinate sentence with a percentage of that

sentence designated for eligibility for rehabilitative programs. Id.



       We further note that the trial court has more flexibility in misdemeanor

sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d 271, 273

(Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of a felony,

is not entitled to a presumption of a minimum sentence. State v. Baker, 966 S.W.2d

429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832 (Tenn.

Crim. App. 1994).



                             A. Length of Sentences

       Class A misdemeanors carry a maximum sentence of eleven months and

twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1). In each case, the trial court

set determinate sentences below the statutory maximum. It enhanced the length

of each sentence due to defendant’s history of criminal convictions. See Tenn.

Code Ann. § 40-35-114(1).        The court also considered defendant’s previous

unwillingness to comply with the conditions of release into the community in that he

failed to report to serve the prescribed jail time in a Rutherford County DUI. See

Tenn. Code Ann. § 40-35-114(8).




                                          6
       These are proper considerations by the trial court in setting misdemeanor

sentences. The length of the sentences imposed is proper.



                          B. Consecutive Sentencing

       With regard to the consecutive nature of these sentences, a court may order

sentences to run consecutively if the court finds by a preponderance of the

evidence that the defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a crime where the

risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). The trial court

properly declared defendant to be a dangerous offender noting that the DUI was a

crime involving great risk to human life. In this case the defendant was driving with

a “toxic” blood alcohol level and wrecked the vehicle.



       Finally, the court is required to determine whether the consecutive sentences

(1) are reasonably related to the severity of the offenses committed; and (2) serve

to protect the public from further criminal conduct by the offender.        State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Although the trial court did not

recite these factors, we find through our de novo review that the sentences comport

with the Wilkerson requirements.



       Imposition of consecutive sentencing in this case was proper.



                                C. DUI Sentence

       The trial court sentenced defendant to nine months and fifteen days at 100%

for the DUI offense. Tenn. Code Ann. § 55-10-403(c) provides that DUI offenders

be “required to serve the difference between the time actually served and the

maximum sentence on probation.” A panel of this court in State v. Combs, 945

S.W.2d 770 (Tenn. Crim. App. 1996), concluded that this statute “in effect,

mandates a maximum sentence for DUI, with the only function of the trial court

being to determine what period above the minimum period of incarceration


                                         7
established by statute, if any, is to be suspended.” Id. at 774 (emphasis added).



        Thus, we conclude that the sentence imposed in this case for the DUI

conviction must be for eleven months and twenty-nine days with nine months and

fifteen days confinement followed by probation for the balance of the sentence.




                                 CONCLUSION



        Based upon the foregoing, we AFFIRM AS MODIFIED the judgment of the

trial court.




                                              ____________________________
                                               JOE G. RILEY, JUDGE



CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




                                        8
