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State v. Butler6/24/2003
that runs out of gas on a major freeway near several exits and gas stations from a car with a cracked block which renders it 'totally inoperable.'" Smelter, 674 P. 2d at 693.
When we apply the reasonably capable of being rendered operable standard in the instant case, we conclude that the present case is distinguishable from Carter. Unlike the automobile in Carter, which required a new battery and substantial engine work to become operational, in the instant case, the only reason that the defendant's motorcycle was not operational at the time of his arrest was because he had just removed the sparkplug and flooded the engine. Moreover, the defendant admitted to driving the motorcycle to Wal-Mart shortly before being arrested. Thus, based upon the evidence and the defendant's own admissions, a rational juror could have determined that the defendant's vehicle was either operable or reasonably capable of being rendered operable. Accordingly, we hold that an examination of the Lawrence factors demonstrates that a rational juror could have found that the defendant in this case was in physical control of his vehicle for purposes of section 55-10-401(a).
SENTENCING
Finally, the defendant has challenged his fine and sentence as being overly harsh. Specifically, the defendant asserts that the trial judge failed to give proper weight to the mitigating factor that "the conduct of Mr. Butler did not cause or threaten bodily injury." See Tenn. Code Ann. § 40-35-113(1) (1997). The defendant bears the burden of establishing that the sentence imposed by the trial court was erroneous. See Ashby, 823 S.W.2d at 168. In conducting a de novo review of a criminal sentence, this Court must "consider the evidence received at the trial and the sentencing hearing, the pre-sentence report, the principles of sentencing, the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and enhancing factors, statements made by the offender, and the potential for rehabilitation." Reid, 91 S.W.3d at 309-10 (citing Tenn. Code Ann. § 40-35-210 (1997 & Supp. 2002); Ashby, 823 S.W.2d at 169). Additionally, we note that in conducting this de novo review, if our review indicates that the trial court abided by the statutory sentencing procedure, that the trial court imposed a lawful sentence after having given consideration and "proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result." State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998).
The pre-sentence report reveals that the defendant was a divorced fifty-three-year-old male. He had eight prior convictions, including two felony marijuana convictions, three convictions for driving under the influence , and three convictions for driving with a revoked license. The report also showed that the defendant had a $25,000 credit card debt and that "it may be difficult for him to meet any substantial monetary demands placed upon him by the court."
After establishing that the defendant possessed two prior felony convictions, the trial court properly determined that the defendant was a Range II offender under the Tennessee Criminal Sentencing Reform Act of 1989. A Range II offender convicted of driving under the influence, fourth offense (a Class E felony), is subject to a potential criminal sentence of two to four years confinement. See Tenn. Code Ann. § 40-35-101 (1997). In determining the appropriate sentence for the defendant, the trial court considered the mitigating factor that the "defendant's criminal conduct neither caused nor threate
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