State v. Virginia Gann ( 1998 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 27, 1998
FEBRUARY 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9704-CC-00164
)
vs. ) Coffee County
)
VIRGINIA AILENE GANN, ) Hon. Gerald L. Ewell, Sr., Judge
)
Appellant. ) (DUI - 2d, Evading Arrest)
FOR THE APPELLANT: FOR THE APPELLEE:
VICKIE FRYE-FOWLKES (at trial) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 247
Winchester, TN 37398 KAREN M. YACUZZO
Assistant Attorney General
ROBERT S. PETERS (on appeal) 425 Fifth Ave. North
Attorney at Law 2d Floor, Cordell Hull Bldg.
100 First Ave., S.W. Nashville, TN 37243-0493
Winchester, TN 37398
C. MICHAEL LAYNE
District Attorney General
STEPHEN E. WEITZMAN
Asst. District Attorney General
P.O. Box 147
Manchester, TN 37349-0147
AFFIRMED
OPINION FILED:_________________
CURWOOD WITT, JUDGE
OPINION
The defendant, Virginia Ailene Gann, appeals her convictions of
second offense driving under the influence and evading arrest.1 Her convictions
resulted from a jury trial in the Coffee County Circuit Court. The trial court
sentenced her to serve eleven months and 29 days for driving under the influence,
with 180 days of incarceration followed by probation, and two years of incarceration
for evading arrest. Concurrent sentences were imposed. In this direct appeal,
Gann contends the convicting evidence is insufficient to support findings of guilt
beyond a reasonable doubt and that her sentences are excessive. Following this
court's review of the record and the briefs of the parties, we affirm the judgment of
the trial court.
Gann's convictions stem from events occurring during the early
morning hours of October 28, 1995 as she drove the city streets of Tullahoma after
an evening of socializing with friends in a restaurant and a bar and drinking mixed
alcoholic beverages.
At trial, Sergeant Joe Alvarez of the Tullahoma Police Department
testified that at approximately 3:00 a.m., he was directing traffic around an accident
scene. He saw a vehicle approach with its parking lights on but not its headlights.
The right blinker was operating, and the vehicle was traveling in an erratic manner
above the posted speed limit of 30 miles per hour. The vehicle nearly hit a parked
patrol car, but it swerved and avoided a collision. Using his flashlight, Alvarez
motioned for the vehicle to pull over. Gann, the driver of the car, pulled into the
oncoming lane and stopped. Sergeant Alvarez, who was dressed in his police
uniform and a blue windbreaker with police insignia, motioned for Gann to roll down
her window. She fumbled and eventually rolled down the window. Gann refused,
1
Gann was also convicted of violation of the implied consent law. She has
not appealed this conviction.
2
however, to get out of the car despite Sergeant Alvarez's multiple requests. Using
profanity, Gann informed the officer she was not going anywhere but home. Gann's
speech was slurred. Alvarez noticed the smell of an alcoholic beverage on her
breath and clothes. He reached into the car and attempted to turn it off but was
only able to get it into the parking gear. The defendant then put the car in motion,
bumping Alvarez's knee as she drove from the scene.
Officer Kerry Hayworth witnessed the defendant's erratic driving and
her exchange with Sergeant Alvarez. Hayworth was able to hear part of Alvarez's
conversation with the defendant, including Alvarez's multiple requests that the
defendant get out of her car and her refusal to do so. As the defendant drove away
from Alvarez "in a fast direction," she ran a red light. Hayworth ran to his patrol car
and followed her with blue lights and siren operating. Hayworth pursued her
through two turns and into an alley. After stopping in the alley for 30 to 40 seconds,
Gann pulled out into another street. A county constable, Mike Fowler, was waiting
on the street to intercept Gann, and she stopped her vehicle shortly thereafter. The
entire distance from the wreck scene to the site of apprehension was approximately
half a mile.
Officer Hayworth yelled for the defendant to get out of her car. For
about two minutes, he asked her repeatedly to unlock and open her door. Gann
appeared to be trying to unlock her door, and finally Hayworth told her to roll down
the window. Gann complied, and Hayworth reached in and unlocked the door.
Gann smelled of alcohol. Sergeant Allison, who knew the defendant, arrived on the
scene and was able to coax her from the vehicle. When she came out of the car,
Gann was unsteady on her feet and leaned on the car door for support. Hayworth
did not administer field sobriety tests for fear Gann might injure herself.
3
Hayworth transported Gann to the police station, where she refused
to take an intoximeter test. Hayworth did not recall Gann making any complaints
about her medical condition while she was in his patrol vehicle. He described her
degree of intoxication as "strong."
Officer Hugh Vickers was on duty in the jail on October 28, 1995. He
did the intake of the defendant. She did not at that time complain of any medical
conditions that needed attention. She had some medicine with her, which she later
requested. The defendant was not given her medication because jail policy is not
to allow prisoners who have been drinking to have any medication for their own
safety.
Constable Mike Fowler assisted Officer Hayworth in pursuit of the
defendant. He generally corroborated Hayworth's testimony. He described the
defendant as mad, uncooperative and strongly impaired. The constable opined that
the defendant should not have been driving. He noticed her speech was slurred.
He conceded it was possible that someone who was sick could be unable to stand
or would have problems walking.
Officer Johnny Gore was on duty at the Tullahoma Police Department
as the public service officer on the night of the defendant's arrest. He heard about
the incident on the radio. Realizing the pursuit was taking place nearby, he ran
outside and witnessed the defendant making an erratic turn into the wrong lane of
traffic.
Sergeant Rodney Banks witnessed Gann's refusal to perform the
intoximeter test. He described her as "very intoxicated." He said the defendant was
cooperative "for the condition she was in" and wanted to understand everything, but
4
it was hard to explain things to her.
The state also introduced documentary exhibits containing the
defendant's signature on the jail intake form and a document signed on a later date.
In the former, the defendant's signature is much less legible than the latter.
The defendant took the stand and detailed her many physical
ailments. She has a history of heart surgery and chest pains. She was having
chest pains on October 27, 1995, but she worked all day as a nurse's aide. That
evening, a friend visited Gann. The defendant drank one mixed drink containing
vodka and grapefruit juice with her friend. Earlier in the day, Gann had taken
Cardizem, which is a blood pressure medication, a coated aspirin and a diuretic.
Apparently, she also took nitroglycerin for chest pains while at home that evening.
The defendant and her friend went to a restaurant to see other friends, and Gann
had a sandwich and a second vodka and grapefruit juice cocktail. Around 10:00
p.m., the defendant and her friend went to The Office Lounge. The defendant
testified she drank only orange juice from this point forward. The defendant
became sick and took nitroglycerin. Later, she took her friend home and returned
to The Office.
The defendant talked with Detective Holder after she returned to The
Office. The detective had responded because of vandalism that had taken place
earlier in the evening. Gann denied that Detective Holder said anything to her about
her state of intoxication.
The defendant left The Office around 2:00 or 2:30 a.m., but she was
so sick that she sat in her car for 15 to 20 minutes. She had taken a "nitrate." As
the defendant attempted to make her way home, she came upon the wreck and
5
Officer Alvarez. She testified she thought Alvarez was directing her to go around,
so she drove over to the left side of the road. She saw Alvarez, whom she was not
sure was a police officer, saying something to her. She thought he was telling her
to go ahead. She heard someone yell "hey" but she thought this commotion was
related to the wreck scene. After Gann left the scene, she saw blue lights but did
not think they were for her. She pulled into an alley to let the police vehicle pass.
When she realized the blue lights were for her, she decided to go to a well lighted
area because she had heard of women in Nashville and other places being stopped
by police impostors using blue lights. Gann claimed she was not trying to elude the
officers.
According to Gann, the officers pulled her out of her car. She went
limp and felt as if she would faint. The officers did not inquire whether she had
been drinking. At the jail, Gann gave the officials her nitroglycerin and informed
them she had been taking it for chest pains and nausea. She asked for some
nitroglycerin but was not given any. She explained that her signature on the jail
intake form was difficult to read because she was sick and uncoordinated.
The defendant explained her conduct with the officers as a
misunderstanding of the situation. She claimed she was not drunk and had only two
drinks all evening. She has had alcohol on only a few occasions since having heart
surgery. With reference to her headlights, she thought they were turned on. She
did not recall speaking with Detective Holder at The Office about her alcohol
consumption and whether she should be out on the roads. She explained that her
difficulty in unlocking the car doors resulted because she rarely locks them. She
decided not to submit to an intoximeter test based upon her mistrust of the reliability
of such test results from past experience.
6
Steve Ashley, the manager of The Office, testified for the defense. He
served the defendant orange juice but no alcohol on the evening in question.
Ashley remembered serving the defendant beer in the past but had never seen her
drink liquor. He did not see her add liquor to her orange juice, but he did not watch
her constantly. He recalled that Gann was not feeling well and had taken some
nitroglycerin.
Melissa Mantooth testified she was at The Office on October 27,
where she talked with the defendant. She recalled that the defendant did not feel
well and was taking nitroglycerin. She did not see the defendant consume any
alcohol. Mantooth opined that the defendant did not appear to be intoxicated and
did not smell of alcohol.
Harold Ashley, a family friend of the defendant, testified that the
defendant was feeling "pretty good" as far as he knew and did not appear
intoxicated. He saw Gann drinking orange juice from a small can. He recalled that
a blonde woman spilled a mixed drink on Gann during the evening.
Doctor Dinish Gupta, the defendant's cardiologist, testified that the
defendant is on several medications for her coronary artery disease. He opined that
these medications would not increase the level of intoxication if ingested with
alcohol. However, he testified that nitroglycerin use "may be associated with light-
headedness on standing, especially just after rising from recumbent or seated
position." Further, this effect may occur more frequently in patients who have
consumed alcohol. He admitted that nitroglycerin relaxes the smooth muscle of the
heart, but it would not have the same effect on the skeletal muscles. With respect
to the defendant's varying signatures, he testified that the nitroglycerin would not
account for the decreased legibility of the signature on the jail intake form unless the
7
defendant's blood pressure was very low at the time of the signature. He admitted
that it was "possible" that the signature appeared as it did due to consumption of a
significant amount of an alcoholic beverage.
In rebuttal, the state called Detective Pat Holder of the Tullahoma
Police Department. The detective has known the defendant for twenty years. He
saw the defendant at The Office in the late evening hours of October 27 or the early
morning hours of October 28. She had the odor of alcohol on her breath. Gann told
Detective Holder that she was not supposed to drink but in the excitement of the
vandalism and a fight she had been drinking. He said Gann "was high and had a
buzz on" but was not "falling down drunk." He warned the defendant that she might
be arrested if she "got out on the street."
I
First, the defendant challenges the sufficiency of the convicting
evidence on both the DUI and evading arrest convictions. 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
8
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.
A
In pertinent part, driving under the influence is committed where an
individual
drive[s] or [is] in physical control of any automobile or other motor
driven vehicle on any of the public roads and highways of this 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 .
. . [u]nder the influence of any intoxicant, marijuana, narcotic drug, or
drug producing stimulating effects on the central nervous system . .
..
Tenn. Code Ann. § 55-10-401 (1993) (amended 1996).
In the case at bar, the defendant contends the proof of her intoxication
is insufficient as a matter of law. We disagree. In the light most favorable to the
state, the defendant admitted having two mixed drinks, one at her home and one
at a restaurant before she went to The Office. Additionally, she told Detective
Holder that she had been drinking in the excitement of the vandalism and a fight at
The Office. Other officers observed Gann with slurred speech and alcohol on her
breath. Moreover, the officers testified that Gann was uncooperative at times and
unsteady on her feet. Her signature made on October 28 was difficult to read, in
contrast to a signature made later. The defendant refused to take an intoximeter
9
test.2 Some of this evidence was unrebutted. As to the rest, the jury had the
prerogative, as the finder of fact, to weigh the evidence and accredit the state's
witnesses and discredit the defense witnesses. We believe a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt of driving under
the influence. As such, we find this issue lacking in merit.
B
The defendant also challenges the sufficiency of the convicting
evidence pertaining to evading arrest. The evading arrest statute provides in
pertinent part, "It is unlawful for any person, while operating a motor vehicle on any
street, road, alley or highway in this state, to intentionally flee or attempt to elude
any law enforcement officer, after having received any signal from such officer to
bring the vehicle to a stop." Tenn. Code Ann. § 39-16-603(b)(1) (1997).
The defendant challenges only the sufficiency of proof that she acted
intentionally with respect to this crime. As we have often found, intent is properly
established by circumstantial evidence. See, e.g., State v. Chrisman, 885 S.W.2d
834, 838 (Tenn. Crim. App. 1994). In fact, intent is the element that is most
frequently established from circumstantial proof. See State v. Hall, 490 S.W.2d
495, 496 (Tenn. 1973). In the light most favorable to the state, Sergeant Alvarez
asked Gann to step out of her vehicle, to which she replied "she wasn't going any
g.d. place but home." Whereupon, Gann proceeded to roll up her window and drive
off, bumping Alvarez's knee with her car in the process. Gann then fled from Officer
Hayworth for half a mile while Hayworth had the blue lights and siren on his patrol
2
See State v. Morgan, 692 S.W.2d 428, 430 (Tenn. Crim. App. 1995)
(defendant's refusal to submit to blood alcohol test held probative of issue of
defendant's guilt of DUI when defendant claimed his physical condition was due
to pre-existing disability and not alcohol consumption); see also State v. Smith,
681 S.W.2d 569, 570 (Tenn. Crim. App. 1984).
10
vehicle in operation.3 Moreover, Gann made two turns during the course of
Hayworth's pursuit of her. From this evidence, a rational trier of fact, as the jury in
this case, could infer that the defendant intentionally engaged in these actions in
order to evade arrest by the officials. Thus, we find the evidence sufficient to
sustain the defendant's conviction of evading arrest.
II
In her second issue, Gann complains of the sentences imposed.
Gann received a two-year incarcerative sentence for evading arrest. She received
an eleven month, 29 day sentence for second offense DUI with 180 days to be
served in confinement and the balance on probation.
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). This presumption is "conditioned upon the affirmative showing in the record
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). 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), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. 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); Ashby,
823 S.W.2d at 169.
3
See State v. Kerry D. Garfinkle, No. 01C01-9611-CC-00484, slip op. at 5
(Tenn. Crim. App., Nashville, Nov. 7, 1997) (whether defendant convicted of
evading arrest saw officer's signals to stop is a question of credibility for the jury).
11
In her brief, Gann does not contend that the trial court's determination
should be stripped of the presumption of correctness. Moreover, we find that the
court followed the correct procedure and considered the relevant criteria. Thus, we
evaluate the sentences with the presumption intact.
We begin with the facts developed at the sentencing hearing. The
state presented testimony from Laura Prosser, a presentence investigator with the
Department of Correction. Ms. Prosser recalled that the defendant professed her
innocence and desire to appeal. Ms. Prosser did not sense any remorse from the
defendant. The defense presented the testimony of Dr. Richard Cribbs, who began
treating the defendant in May 19964 for depression and anxiety related to the
defendant's trial and the possibility of having to serve time in jail or prison. Of the
defendant's mental state and his treatment, he opined, "It's been a crisis situation."
He has prescribed Valium for the defendant. Gann has told the doctor several
times that she would rather commit suicide than go to jail. If she were incarcerated,
the defendant would need her medication. A written report from Dr. Cribbs contains
the statement, "I feel that this lady would become even more depressed and
anxious if she was placed behind bars." As a portion of the presentence report, the
court received the defendant's medical records and a letter from Robert M. Canon,
M.D., an orthopaedic surgeon, which detailed the defendant's "cervical disc
syndrome with associated occipital headaches." Doctor Canon also noted Gann's
other medical conditions -- coronary artery disease, hypertensive cardiovascular
disease, angina pectoris, supraventricular tachycardia, wide complex tachycardia
and hyperlipidemia. Other information in the presentence report includes the
defendant's age of 65 years, prior convictions for DUI and public intoxication,
4
The defendant's trial was in June 1996. Doctor Cribbs's testimony was
taken in September 1996.
12
education through the ninth grade plus vocational training as a nurse's aide, and
employment caring for a blind and disabled woman.
A
First, we examine the length of the sentences imposed by the trial
court. The court applied three enhancement factors in arriving at Gann's
sentences:
(1) The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;
...
(10) The defendant had no hesitation about committing a crime when
the risk to human life was high;
...
(16) The crime was committed under circumstances under which the
potential for bodily injury to a victim was great[.]
Tenn. Code Ann. § 40-35-114(1), (10), (16) (1997). The defendant challenges the
application of factors (10) and (16).
Gann's argument with respect to factor (10) is that her behavior in
driving away from Sergeant Alvarez while she allegedly was confused did not pose
"reasonable risk" to Officer Alvarez. We disagree. As we have previously
recognized, enhancement factor (10) may be applied to DUI and evading arrest
convictions in appropriate circumstances. See, e.g., State v. Erwin Keith Tinsley,
No. 03C01-9608-CC-00305, slip op. at 5, n.2 (Tenn. Crim. App., Knoxville, Sept. 9,
1997) (evading arrest); State v. Wayne L. Hughes, No. 01C01-9502-CC-00033, slip
op. at 16 (Tenn. Crim. App., Nashville, June 20, 1996) (opinion on rehearing)
(evading arrest), perm. app. denied (Tenn. 1996); State v. Dockery, 917 S.W.2d
258, 263 (Tenn. Crim. App. 1995) (DUI); State v. Dale L. Stewart, No. 03C01-9106-
CR-00158, slip op. at 5 (Tenn. Crim. App., Knoxville, Mar. 13, 1992) (DUI).
We find Gann's claim of confusion unpersuasive. The trial court found
13
as fact at the sentencing hearing that Gann had been untruthful in this claim. In
finding her guilty of evading arrest, the jury made the same finding. More
significantly, the facts present a case in which several individuals were endangered
by the defendant's drunken driving and evading arrest. The defendant endangered
Sergeant Alvarez, who was standing on a roadway directing traffic around a
wrecked truck in the early morning. Alvarez was fortunate not to have been hurt
severely. Given her erratic driving, the defendant endangered Officer Hayworth and
Constable Fowler when her conduct required them to initiate pursuit of her. We
believe application of this factor was proper.
Likewise, we find no error in the application of factor (16). This factor
is appropriate for DUI and evading arrest convictions where the facts of the case
warrant its application. See, e.g., State v. Joseph L. Fletcher, No. 03C01-9606-CC-
00229, slip op. at 8 (Tenn. Crim. App., Knoxville, July 9, 1997) (DUI); State v.
Kenneth L. Warren, No. 01C01-9605-CC-00218, slip op. at 6-7 (Tenn. Crim. App.,
Nashville, May 21, 1997) (DUI); Wayne L. Hughes, slip op. at 16 (evading arrest);
State v. Dewayne Smith, No. 03C01-9501-CR-00024, slip op. at 9 (Tenn. Crim.
App., Knoxville, Sept. 19, 1995) (evading arrest and DUI), perm. app. denied (Tenn.
1996). While exceeding the speed limit, Gann nearly struck a parked police car.
She ran a red light. On two separate occasions, she drove on the wrong side of the
road. The trial court appropriately found that she committed her crimes under
circumstances under which the potential for bodily injury to a victim was great.
The trial court declined to apply any mitigating factors in arriving at
Gann's sentence. She claims the court should have mitigated her sentence
because of her medical condition, her "criminal conduct neither caused nor
threatened serious bodily injury," and "substantial grounds exist tending to excuse
or justify [her] criminal conduct, though failing to establish a defense." See Tenn.
14
Code Ann. § 40-35-113(1), (3), (13) (1997). Because the trial court appropriately
applied enhancement factors (10) and (16), a finding that the defendant's criminal
conduct neither caused nor threatened serious bodily injury would be inconsistent.
Moreover, we reject the proposition that driving under the influence and evading
arrest while driving under the influence do not cause or threaten serious bodily
injury. Further, the trial court's decision not to find substantial grounds tending to
excuse or justify the defendant's conduct is appropriate because the court found
that the defendant was untruthful. This leaves only the question of mitigation based
upon the defendant's poor health. Bearing in mind the presumed correctness of the
trial court's determination, we do not believe the court erred in declining to find this
mitigating factor. See State v. Anthony Raymond Bell, No. 03C01-9503-CR-00070,
slip op. at 6 (Tenn. Crim. App., Knoxville, Mar. 11, 1996) (finding ill health an
inappropriate mitigating factor but noting it may be an appropriate consideration for
alternative sentencing), perm. app. denied (Tenn. 1996).
Evading Arrest
Evading arrest by motor vehicle is a Class E felony. Tenn. Code Ann.
§ 39-16-603(b)(3) (1997). The sentencing range for a Range I offender such as the
defendant is one to two years. Tenn. Code Ann. § 40-35-112(a)(5) (1997). For a
felony conviction, the trial court is required to start at the minimum sentence and
enhance within the range according to the applicable enhancement factors, then
reduce the sentence appropriately for the mitigating factors. Tenn. Code Ann. § 40-
35-210(e) (1997).
We find that the defendant has failed to demonstrate that the trial
court erred in applying the three enhancement factors and no mitigating factors and
arriving at a maximum sentence of two years. Giving due deference to the trial
court in reviewing its presumptively correct sentence, we may not alter the
15
sentences imposed even if we might have reached a different result. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Driving Under the Influence
For second offense DUI, the sentence imposed may be up to eleven
months and 29 days, with a mandatory minimum of 45 days to be served in the
county jail.5 Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 1996). Driving under the
influence is a Class A misdemeanor. Tenn. Code Ann. § 55-10-403(m) (Supp.
1996). As a misdemeanant, the defendant is not entitled to a presumption of the
minimum sentence. State v. Creasy, 885 S.W.2d 829, 832-33 (Tenn. Crim. App.
1994). Moreover, on a DUI conviction, the defendant may be ordered to serve as
much as 100 percent of her sentence in confinement. See State v. Palmer, 902
S.W.2d 391, 393-94 (Tenn. 1995).
Viewing the applicable enhancement factors and lack of mitigating
factors in light of the presumed correctness of the trial court's determination, we
believe the trial court was well warranted in its decision to impose a mid-range
sentence for DUI.
B
Finding no error in the application of enhancement and mitigating
factors, the remaining question is whether the manner of service of sentences is
appropriate.6
5
Second offense DUI also carries a fine of $600 to $3,500. The defendant
has not challenged the $1,700 fine she received.
6
In her brief, Gann complains of the "long sentence," argues that a
"substantially lower sentence" is more appropriate, and characterized the
sentence as "excessive," "inappropriate and harsh." However, she never
explicitly devotes argument to alternative sentencing.
16
Gann's more serious crime is a Class E felony. She is a Range I
offender. Thus, in the absence of evidence she is an offender for whom
incarceration is a priority, she is presumed a favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997); State v. Byrd, 861
S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). In such a case, the court must
presume that an alternative sentence will result in successful rehabilitation. See
Ashby, 823 S.W.2d at 168-69. These presumptions may be overcome, however,
by evidence to the contrary. Ashby, 823 S.W.2d at 168-69. Additionally, the
defendant is eligible for probation as a form of alternative sentencing.7 See Tenn.
Code Ann. § 40-35-303(a) (1997).
The trial court did not formally designate certain of its findings as
applicable to the issue of alternative sentencing. Nevertheless, its findings reflect
appraisal of the appropriate considerations. The relevant findings of fact include (1)
that the defendant was untruthful, (2) that she exhibited a lack of remorse, and (3)
that she had "a history of frequenting beer joints and other establishments where
intoxicating liquors are served," referring to evidence offered without objection that
the defendant may have an "alcohol problem" as indicated by her past history of
being arrested "in bars and such as that where she had been involved in stuff."8 All
of this evidence, particularly when considered in the aggregate, is indicative of the
defendant's substandard prospects for rehabilitation. See Tenn. Code Ann. § 40-
35-103(5) (1997); State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983)
7
In light of the mandatory minimum 45 days of confinement for second
offense DUI, the defendant is not eligible for a completely probated sentence.
8
This arrest history was elicited from the state's rebuttal witness, a law
enforcement officer. W hen the trial judge inquired at the sentencing about his
suspicion that this evidence may illustrate an alcohol problem, Gann's trial
counsel conceded "Yes, Your Honor, and perhaps that might be, but that is
probably in her younger years and not any time in the recent past." Further,
Gann has two previous convictions related to the abuse of alcohol.
17
(untruthfulness); State v. Pierson, 678 S.W.2d 905 (Tenn. 1984) (remorse); State
v. Katherine H. Gallaher, No. 02C01-9508-CC-00248, slip op. at 3-4 (Tenn. Crim.
App., Jackson, Sept. 30, 1996) (continued abuse of alcohol), perm. app. denied
(Tenn. 1997). A poor rehabilitative outlook is proper grounds for rebuttal of the
presumption of favorable candidacy for alternative sentencing. See, e.g., State v.
David M. Allen, No. 01C01-9505-CC-00153, slip op. at 6 (Tenn. Crim. App.,
Nashville, Apr. 26, 1996) (presumption of favorable candidacy for alternative
sentencing rebutted in part by evidence of defendant's poor prospect of
rehabilitation), perm. app. denied (Tenn. 1996); State v. Joseph L. Powers, No.
02C01-9511-CR-00338, slip op. at 2-3 (Tenn. Crim. App., Jackson, June 28, 1996).
Evading Arrest
In this case, the trial court implicitly found the presumption favoring
alternative sentencing rebutted for this defendant on the felony conviction. The
record leads us to the conclusion that the court was greatly influenced by its finding
that Gann was untruthful about the facts giving rise to the evading arrest conviction.
On de novo review with a presumption of correctness, we find that Gann has failed
to carry the burden of demonstrating that the sentence imposed was improper.
Driving Under the Influence
Gann received an alternative sentence of split confinement for her
misdemeanor DUI conviction. See State v. James A. Howard, No. 03C01-9608-CC-
00284, slip op. at 7 (Tenn. Crim. App., Knoxville, Feb. 24, 1997), pet. for perm. app.
dismissed (Tenn. 1997); State v. James E. Allred, No. 03C01-9504-CR-00110, slip
op. at 2 (Tenn. Crim. App., Knoxville, Mar. 20, 1996); State v. Marjorie Jeanette
Sneed, No. 03C01-9410-CR-00369, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct.
17, 1995); Ernest Lee Lands, Jr. v. State, No. 03C01-9404-CR-00145, slip op. at
3 (Tenn. Crim. App., Knoxville, May 19, 1995), perm. app. denied (Tenn. 1995);
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State v. Danny Allison, No. 03C01-9403-CR-00106, slip op. at 3 (Tenn. Crim. App.,
Knoxville, Mar. 23, 1995); State v. Alvin Lee Lewis, No. 01C01-9404-CC-00125, slip
op. at 7-8 (Tenn. Crim. App., Nashville, Mar. 14, 1995), perm. app. denied (Tenn.
1995); see also Tenn. Code Ann. § 40-35-104(c) (1997). Thus, the only complaint
the defendant could feasibly have with this sentence is whether she should have
been granted a more favorable alternative. As we have previously observed, "we
will not second-guess the sentencing decision of the trial court as to the particular
alternative chosen unless the record establishes compelling reasons for us to do
so." Danny Allison, slip op. at 4. In this case, we are not so compelled, particularly
in view of the defendant's poor prospect of rehabilitation.
For the foregoing reasons, we affirm the judgment below.
_______________________________
CURWOOD WITT, JUDGE
_____________________________
GARY R. WADE, JUDGE
_____________________________
WILLIAM M. BARKER, JUDGE
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