Cyril v. Fraser ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMBER 1994 SESSION September 9, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
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STATE OF TENNESSEE, 5
Appellee 5 No. 03C01-9409-CR-00314
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vs. K GREENE COUNTY
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5 Hon. James E. Beckner, Judge
KERRY A. COMBS, 5
Appellant 5 (DUI)
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FOR THE APPELLANT: FOR THE APPELLEE:
Joyce M. Ward Charles W. Burson
Assistant Public Defender Attorney General & Reporter
Third Judicial District
1609 College Park Drive Cyril V. Fraser
Box 11 Assistant Attorney General
Morristown, TN 37813-1618 Criminal Justice Division
(AT TRIAL & OF COUNSEL ON 450 James Robertson Parkway
APPEAL) Nashville, TN 37243-0493
Thomas T. Woodall C. Berkeley Bell
203 Murrell Street District Attorney General
P.O. Box 1075
Dickson, TN 37056-1075 Cecil C. Mills
(ON APPEAL) Asst Dist. Attorney General
113 West Church Street
Greeneville,TN. 37743
OPINION FILED: _______________________
CONVICTION AFFIRMED, REMANDED FOR RESENTENCING
Robert E. Burch
Special Judge
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OPINION
The appellant was convicted by a jury of the criminal
offense of driving a motor vehicle while intoxicated (third
offense) and driving without a license. On the DUI, the trial
court sentenced the appellant to eleven months, twenty-nine days
in the county jail; set his release eligibility at fifty per-
cent; fined him one thousand ten dollars and denied alternative
sentencing. The sentence for driving without a license was
thirty days in the county jail and a fine of forty dollars. Both
sentences were ordered served concurrently.
Appellant presents three issues for review by this court:
1). The sufficiency of the evidence;
2). Whether a sua sponte comment by the trial court
improperly prejudiced appellant’s right to a fair trial; and
3). The propriety of the sentence.
FACTS
In the early morning hours of November 28, 1993, appellant
received a telephone call from a friend who was at a local bar.
The friend stated that he had consumed too much alcohol to drive
safely and requested appellant to pick him up and take him home.
Appellant did so and was in the process of taking his friend
home when an officer of the Greeneville Police Department noticed
appellant make an unusually wide turn at an intersection. The
officer followed appellant and, at the proper time, activated his
blue lights. Appellant passed several appropriate places to stop
his vehicle but finally stopped after traveling about three or
four tenths of a mile.
When stopped and questioned, appellant admitted that he did
not have a driver's license. The officer noticed the smell of an
intoxicating beverage emanating from the vehicle and requested
appellant to get out of the car and talk to him outside. This
was done and the officer smelled the odor of an intoxicant on
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appellant's breath. Upon inquiry, appellant told the officer
that he had consumed three beers. Thereupon, the officer
administered a battery of three field sobriety tests. In the
opinion of the officer, appellant passed one test (heel-to-toe);
barely failed one (horizontal gaze and nystagmus) and failed one
outright (one-leg stand). No other evidence of intoxication was
introduced.
Appellant refused a breath alcohol test, demanding instead a
blood test. It was during the testimony concerning the blood
test request that the trial judge sua sponte made the remark that
appellant was not entitled to a blood test.
Appellant introduced considerable evidence contrary to the
facts set out above. For example, he insisted that he had
consumed no alcohol at all and had performed the field sobriety
tests satisfactorily, with any poor performance being readily
explained by the inclement weather and the poor condition of the
roadway upon which the tests were administered. His testimony
concerning his alcohol consumption (or lack thereof) was
corroborated by his passenger and by his live-in girlfriend.
Sufficiency of Proof
A guilty verdict from the jury, approved by the trial judge,
accredits the testimony of the State's witnesses and resolves all
conflicts in favor of the State. State v. Hatchett 560 S.W.2d 627(Tenn. 1978). In reviewing the sufficiency of the proof, we must
accept the State’s version of the facts and discount the
appellant’s version.
Where the sufficiency of the evidence is challenged, the
relevant question for an appellate court 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. State
v. Williams 657 S.W.2d 405 (Tenn. 1983).
On appeal the State is entitled to the strongest legitimate
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view of the evidence and all reasonable or legitimate inferences
which may be drawn therefrom. State v. Cabbage 571 S.W.2d 832(Tenn. 1978). A verdict against a defendant removes the
presumption of innocence and raises a presumption of guilt on
appeal, which the appellant has the burden of overcoming. State v
Grace 493 S.W.2d 474 (Tenn. 1973).
At the trial, the State offered evidence which, if believed,
would establish that appellant:
1). Was driving erratically;
2). Had the odor of an alcoholic beverage about his
person;
3). Admitted drinking three beers; and
4). Performed unsatisfactorily on two of three field
sobriety tests.
Appellant offered evidence which, if believed, would have
established that all four of the above points were untrue and
that he had had nothing at all to drink that night.
The resolution of this factual dispute was a classic jury
question. The jury resolved the issue in favor of the State. We
do not reweigh or re-evaluate the evidence. State v Cabbage,
supra. The jury obviously found the officer’s version to be
credible and rejected appellant’s version. We will not disturb
that finding. Appellant has not convinced us that a rational
trier of fact could not have found the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia 443 U.S.
307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The issue is without
merit.
Judicial Comment
At the beginning of cross-examination of the arresting
officer, appellant’s able counsel attempted to elicit the fact
that, although appellant had refused a breath alcohol test, he
did request a blood test to determine the level of alcohol in his
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blood. The trial judge interjected that appellant was not
entitled to such a test. No contemporaneous objection was made
by appellant.
Since appellant had refused the breath alcohol test offered
to him, he had no right to a blood test. State v Choate 667 S.W.
2d 111 (Tenn. Crim. App. 1983). The trial judge’s statement was
correct.
The trial court has the discretion to sua sponte limit
testimony that is irrelevant. State v James Frederick Helton
(unreported) Court of Criminal Appeals at Knoxville #03C01-9406-
CR-00220 filed November 22, 1995. This action by the trial judge
did not indicate any opinion for or against the appellant, it
simply was an attempt to redirect the focus of the questioning.
The comment was not error. State v Harris 839 S.W.2d 54 (Tenn.
1992).
Sentencing
Misdemeanor sentencing is controlled by T.C.A. §40-35-302,
which provides in part that the trial court shall impose a
sentence consistent with the purposes and principles of the 1989
Criminal Sentencing Reform Act. In determining the correct
sentence, the trial court should examine the case in the light of
the nature and character of the offense. State v. Gilboy 857
S.W.2d 884(Tenn. Crim. App. 1993). Among the factors applicable
to the Defendant's application for probation are the
circumstances of the offense, his criminal record, social history
and present condition, and the deterrent effect upon and best
interest of the Defendant and the public. State v. Gennoe 851
S.W.2d 833(Tenn. Crim. App. 1992).
Misdemeanor sentencing is designed to provide the trial
court with continuing jurisdiction and a great deal of
flexibility. The trial court retains the authority to place the
Defendant on probation either immediately or after a time of
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periodic or continuous confinement. T.C.A. § 40-35-302(e).
Because especially mitigated or standard offenders convicted of
Class C, D, or E felonies are presumed to be favorable candidates
for alternative sentencing, the same presumption would logically
apply to misdemeanors. Gennoe 851 S.W.2d at 837; see T.C.A. §
40-35-102(6). However, the misdemeanant, unlike the felon, is not
entitled to the presumption of a minimum sentence. State v.
Creasy 885 S.W.2d 829(Tenn. Crim. App.1994). Additionally, the
burden of establishing suitability for probation rests with the
Defendant. T.C.A. § 40-35-303(b).
We review the trial court’s sentence de novo with a general
presumption of correctness if the record demonstrates that the
trial court properly considered relevant sentencing principles.
State v Ashby 823 S.W.2d 166 (Tenn.1991); T.C.A.§40-35-401(d).
In setting the sentence at the maximum for the offense, we
do not find that the trial judge departed from the requirements
of Ashby. This is especially true since T.C.A.§55-10-403(c), 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 established by statute, if
any, is to be suspended.
In determining whether alternatives to incarceration were
appropriate, we are of the opinion that the trial judge erred.
The trial court refused to suspend any portion of
appellant’s sentence based upon three factors, which the trial
judge stated on the record:
1). Appellant’s prior history of alcohol abuse evinced
by his two prior convictions for DUI;
2). General deterrence of those in Greene County
inclined to violate this law; and
3). The circumstances of the offense, to wit: the
reckless driving of the appellant.
None of these factors would support the denial of a
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suspended sentence.
The first factor is, in reality, the fact that appellant has
two prior DUI convictions. Nothing more than the fact of the
convictions was entered into the record to establish his prior
history of alcohol abuse. There is nothing in the record from
which the trial court could have found that appellant ever
consumed alcohol in his entire life prior to this incident on
trial except upon those two occasions, once in 1986 and once in
January of 1991. Counting the present case, appellant has had
three DUIs in seven years. While this is an obvious repeated and
serious violation of the law, it hardly establishes an alcohol
problem which could be used to incarcerate appellant for more
than the statutory minimum. This is particularly true when these
same facts are used to establish an element of the offense for
which appellant was convicted (third offense DUI). The General
Assembly has established a mandatory minimum period of
incarceration for just these facts and, no other facts appearing,
increasing that period would encroach upon the legislative
prerogative.
Before a trial court may deny probation on the ground of
deterrence, there must be some evidence in the record that the
sentence imposed will have a deterrent effect within the
jurisdiction. State v Horne 612 S.W.2d 186 (Tenn. Crim. App.
1980). In addition, the Tennessee Criminal Sentencing Reform Act
of 1989 requires that any sentence imposed by a court must be
based on evidence contained in the record of the trial and
sentencing hearing or the presentence report. T.C.A. §40-35-
210(d). A finding that appellant’s sentence will have a
deterrent effect cannot be merely conclusory only but must be
supported by proof. State v. Smith 735 S.W.2d 859 (Tenn. Crim.
App. 1987).
The record is devoid of any proof of deterrence. The
reliance upon this factor was error.
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Lastly, the trial court relied upon the circumstances of the
offense to deny probation.
The trial court may, of course, deny probation based upon
the circumstances of the offense. State v Hartley 818 S.W.2d 374(Tenn. Crim. App 1991). In order to do so based solely upon that
factor, however, the circumstances of the offense as committed
must be especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree and
the nature of the offense must outweigh all factors favoring
probation. supra.
The facts in the record do not support such a finding.
It follows, then, that the trial court erred in denying
appellant suspension of some portion of his sentence.
If there were no factors in the record which would support
incarceration above the minimum established by the statute, we
would modify the sentence to grant probation after service of
said period. The record, however, does contain factors which the
trial judge may chose to consider in determining whether to
require a longer period of incarceration, e.g. the untruthfulness
of the appellant in denying that he had consumed alcohol. This
being the case, it is the trial court, not an appellate court,
which should make that determination.
The judgment of conviction and length of sentence is
affirmed and the case is remanded to the trial court to determine
the amount of appellant’s sentence which should be served on
probation.
_________________________
Robert E. Burch,
Special Judge
CONCUR:
_________________________
Gary R. Wade, Judge
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_________________________
Joseph M. Tipton, Judge
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