IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE AUGUST SESSION, 1996 FILED October 1, 1996 STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) No. 03C01-9510-CC-00321ourt Clerk Appellate C Appellee ) ) BLOUNT COUNTY vs. ) ) Hon. D. Kelly Thomas, Jr., Judge JOHN RUSSELL TURNER, ) ) (DUI) Appellant )
For the Appellant: For the Appellee:
Mack Garner Charles W. Burson District Public Defender Attorney General and Reporter 318 Court Street Maryville, TN 37801 Michael J. Fahey, II Assistant Attorney General Mary Ann Queen, Legal Assistant Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
Michael L. Flynn District Attorney General
Charles Carpenter Asst. District Attorney General Blount County Courthouse Maryville, TN 37801
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, John Russell Turner, appeals from his conviction by a jury
for driving under the influence of an intoxicant. The Circuit Court of Blount
County sentenced the appellant to eleven months and twenty-nine days
incarceration in the county jail and suspended all but five days. On appeal, the
appellant contends that the evidence adduced at trial is insufficient to support a
conviction, because the State failed to prove that he intended to operate a
vehicle.
After reviewing the record, we affirm the judgment of the trial court.
BACKGROUND
Shortly after midnight, on December 31, 1994, Officer Ruskey of the
Maryville Police Department observed two individuals stagger across the public
parking lot adjoining the “Coffee Shop,” an establishment which serves alcoholic
beverages, and enter a vehicle. By the time the officer approached the vehicle,
the lights were on and the engine was running. The vehicle, however, remained
stationary. The appellant was seated behind the steering wheel, and a female
occupied the passenger seat. The appellant and his companion admitted to
Officer Ruskey that they had been drinking. The appellant failed to satisfactorily
perform three field sobriety tests. An intoximeter test, subsequently administered
at the police station, reflected a breath alcohol level of .28 percent. Ruskey
testified that there was no doubt in his mind that the appellant was intoxicated on
the night in question and that the appellant’s ability to operate a vehicle “was
very impaired.”
At trial, the appellant admitted that he was intoxicated when he entered
2 his vehicle. However, although the appellant conceded that he was seated
behind the steering wheel when the officer approached his vehicle and that he
had his car keys “out,” he denied starting the engine or turning on the car’s
headlights. Moreover, the appellant denied any intent to drive his vehicle from
the parking lot. He explained that, earlier that evening, he had called his nephew
and had asked his nephew to drive him home, because he knew that he was too
intoxicated to drive. According to the appellant, he was simply awaiting his
nephew’s arrival when approached by Officer Ruskey. The appellant’s nephew
also testified at trial and confirmed that he had been called by his uncle and
asked to drive him home. After deliberating, the jury found the appellant guilty of
driving under the influence.
ANALYSIS
The appellant challenges the sufficiency of the evidence supporting his
conviction for driving under the influence of an intoxicant. Tenn. Code Ann. §
55-10-401(a) (1993) provides: “It is unlawful for any person or persons to drive or
to be in physical control of any automobile ... on any ... premises which is
generally frequented by the public at large, while under the influence of any
intoxicant ... .” The appellant concedes that he was under the influence of an
intoxicant at the time of his arrest and that, technically, he was in physical control
of his vehicle, which was located in a public parking lot. However, despite the
absence of any language in the drunk driving statute requiring a culpable mental
state, the appellant asserts that the crime of driving under the influence requires
an intent to operate a vehicle.
In support of his argument, the appellant relies upon Tenn. Code Ann. §
39-11-102(b)(1991) and Tenn. Code Ann. § 39-11-301(b) and (c) (1991). Tenn.
Code Ann. § 39-11-102(b) provides that “[t]he provisions of parts 1-6 of this
chapter apply to offenses defined by other laws unless otherwise provided by
3 law.” Tenn. Code Ann. § 39-11-301 provides:
(b) A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element. (b) If the definition of an offense ... does not plainly dispense with a mental element, intent, knowledge, or recklessness suffices to establishes the culpable mental state.
“The provisions of [the criminal code] shall be construed according to the
fair import of their terms, including reference to judicial decisions and common
law interpretations, to promote justice, and effect the objectives of the criminal
code.” Tenn. Code Ann. § 39-11-104 (1991). In determining the application of
Tenn. Code Ann. § 39-11-102(b) and 39-11-301(b) and (c) to the driving while
intoxicated statute, we note that this court has previously observed that there is
no culpable mental state required for guilt of driving under the influence. State v.
Fiorito, No. 03C01-9401-CR-00032 (Tenn. Crim. App. at Knoxville, November
27, 1995). See also State v. Mabe, No. 03C01-9402-CR-00051 (Tenn. Crim.
App. at Knoxville, October 25, 1994)(“we doubt that the offense [of driving under
the influence] requires as an element that the defendant have the specific intent
to drive the vehicle, in addition to having physical control”). Indeed, considering
our supreme court’s decision in State v. Lawrence, 849 S.W.2d 761 (Tenn.
1993), the definition of the offense of driving under the influence “plainly
dispenses with a mental element.” See Tenn. Code Ann. § 39-11-301. In
Lawrence, our supreme court, in construing the meaning of “physical control,”
remarked:
It is our opinion that the Legislature, in making it a crime to be in physical control of an automobile while under the influence of an intoxicant, “intended to enable the drunken driver to be apprehended before he strikes.” We agree with the observation that “[a] motor vehicle is recognized in the law as a dangerous instrumentality when in the control of a sober person; in the control of a drunk, the dangerous instrumentality becomes lethal. Therefore ... the court [should interpret] the drunk driving statute in a way that [keeps] drunks from behind the steering wheels of motor vehicles, even when the drunk need[s] to ‘sleep it off.’”
Lawrence, 849 S.W.2d at 765 (emphasis added). Contrast State v. Love, 897
4 S.W.2d P.2d 626, 628-630 (Ariz. 1995). In other words, in enacting the driving
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE AUGUST SESSION, 1996 FILED October 1, 1996 STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) No. 03C01-9510-CC-00321ourt Clerk Appellate C Appellee ) ) BLOUNT COUNTY vs. ) ) Hon. D. Kelly Thomas, Jr., Judge JOHN RUSSELL TURNER, ) ) (DUI) Appellant )
For the Appellant: For the Appellee:
Mack Garner Charles W. Burson District Public Defender Attorney General and Reporter 318 Court Street Maryville, TN 37801 Michael J. Fahey, II Assistant Attorney General Mary Ann Queen, Legal Assistant Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
Michael L. Flynn District Attorney General
Charles Carpenter Asst. District Attorney General Blount County Courthouse Maryville, TN 37801
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, John Russell Turner, appeals from his conviction by a jury
for driving under the influence of an intoxicant. The Circuit Court of Blount
County sentenced the appellant to eleven months and twenty-nine days
incarceration in the county jail and suspended all but five days. On appeal, the
appellant contends that the evidence adduced at trial is insufficient to support a
conviction, because the State failed to prove that he intended to operate a
vehicle.
After reviewing the record, we affirm the judgment of the trial court.
BACKGROUND
Shortly after midnight, on December 31, 1994, Officer Ruskey of the
Maryville Police Department observed two individuals stagger across the public
parking lot adjoining the “Coffee Shop,” an establishment which serves alcoholic
beverages, and enter a vehicle. By the time the officer approached the vehicle,
the lights were on and the engine was running. The vehicle, however, remained
stationary. The appellant was seated behind the steering wheel, and a female
occupied the passenger seat. The appellant and his companion admitted to
Officer Ruskey that they had been drinking. The appellant failed to satisfactorily
perform three field sobriety tests. An intoximeter test, subsequently administered
at the police station, reflected a breath alcohol level of .28 percent. Ruskey
testified that there was no doubt in his mind that the appellant was intoxicated on
the night in question and that the appellant’s ability to operate a vehicle “was
very impaired.”
At trial, the appellant admitted that he was intoxicated when he entered
2 his vehicle. However, although the appellant conceded that he was seated
behind the steering wheel when the officer approached his vehicle and that he
had his car keys “out,” he denied starting the engine or turning on the car’s
headlights. Moreover, the appellant denied any intent to drive his vehicle from
the parking lot. He explained that, earlier that evening, he had called his nephew
and had asked his nephew to drive him home, because he knew that he was too
intoxicated to drive. According to the appellant, he was simply awaiting his
nephew’s arrival when approached by Officer Ruskey. The appellant’s nephew
also testified at trial and confirmed that he had been called by his uncle and
asked to drive him home. After deliberating, the jury found the appellant guilty of
driving under the influence.
ANALYSIS
The appellant challenges the sufficiency of the evidence supporting his
conviction for driving under the influence of an intoxicant. Tenn. Code Ann. §
55-10-401(a) (1993) provides: “It is unlawful for any person or persons to drive or
to be in physical control of any automobile ... on any ... premises which is
generally frequented by the public at large, while under the influence of any
intoxicant ... .” The appellant concedes that he was under the influence of an
intoxicant at the time of his arrest and that, technically, he was in physical control
of his vehicle, which was located in a public parking lot. However, despite the
absence of any language in the drunk driving statute requiring a culpable mental
state, the appellant asserts that the crime of driving under the influence requires
an intent to operate a vehicle.
In support of his argument, the appellant relies upon Tenn. Code Ann. §
39-11-102(b)(1991) and Tenn. Code Ann. § 39-11-301(b) and (c) (1991). Tenn.
Code Ann. § 39-11-102(b) provides that “[t]he provisions of parts 1-6 of this
chapter apply to offenses defined by other laws unless otherwise provided by
3 law.” Tenn. Code Ann. § 39-11-301 provides:
(b) A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element. (b) If the definition of an offense ... does not plainly dispense with a mental element, intent, knowledge, or recklessness suffices to establishes the culpable mental state.
“The provisions of [the criminal code] shall be construed according to the
fair import of their terms, including reference to judicial decisions and common
law interpretations, to promote justice, and effect the objectives of the criminal
code.” Tenn. Code Ann. § 39-11-104 (1991). In determining the application of
Tenn. Code Ann. § 39-11-102(b) and 39-11-301(b) and (c) to the driving while
intoxicated statute, we note that this court has previously observed that there is
no culpable mental state required for guilt of driving under the influence. State v.
Fiorito, No. 03C01-9401-CR-00032 (Tenn. Crim. App. at Knoxville, November
27, 1995). See also State v. Mabe, No. 03C01-9402-CR-00051 (Tenn. Crim.
App. at Knoxville, October 25, 1994)(“we doubt that the offense [of driving under
the influence] requires as an element that the defendant have the specific intent
to drive the vehicle, in addition to having physical control”). Indeed, considering
our supreme court’s decision in State v. Lawrence, 849 S.W.2d 761 (Tenn.
1993), the definition of the offense of driving under the influence “plainly
dispenses with a mental element.” See Tenn. Code Ann. § 39-11-301. In
Lawrence, our supreme court, in construing the meaning of “physical control,”
remarked:
It is our opinion that the Legislature, in making it a crime to be in physical control of an automobile while under the influence of an intoxicant, “intended to enable the drunken driver to be apprehended before he strikes.” We agree with the observation that “[a] motor vehicle is recognized in the law as a dangerous instrumentality when in the control of a sober person; in the control of a drunk, the dangerous instrumentality becomes lethal. Therefore ... the court [should interpret] the drunk driving statute in a way that [keeps] drunks from behind the steering wheels of motor vehicles, even when the drunk need[s] to ‘sleep it off.’”
Lawrence, 849 S.W.2d at 765 (emphasis added). Contrast State v. Love, 897
4 S.W.2d P.2d 626, 628-630 (Ariz. 1995). In other words, in enacting the driving
while intoxicated statute, the legislature desired not only to prohibit the operation
of a vehicle by an intoxicated individual, but also to remove from the inebriated
the option of operating a vehicle. Accordingly, the supreme court quoted with
approval the following language:
“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with respect to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away.”
Id. at 765 n.2 (citing Hughes v. State, 535 P.2d 1023, 1024 (Okla.
1975))(emphasis added).
Thus, by defining the offense of driving under the influence to encompass
the mere physical control of a vehicle, the legislature clearly signaled its intention
to create a crime imposing strict liability. It is for the legislature to determine
whether the public injury threatened by those driving under the influence is so
great as to justify imposition of strict liability.
While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it, there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But ... the State may in the maintenance of a public policy provide “that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.”
United States v. Balint, 258 U.S. 250, 251-252, 42 S.Ct. 301, 302
(1922)(citations omitted).
We note that, in order to illustrate his argument, the appellant in his brief
poses several hypothetical situations, including the scenario in which an
5 intoxicated and unconscious individual is carried to his car by his companions
and left in the vehicle, resulting in his subsequent discovery by a police officer.
However, in general, a minimum requirement for criminal liability is the
performance of a voluntary act. See Model Penal Code § 2.01 (1985).1 A
voluntary act is a bodily movement performed consciously as a result of effort or
determination. Id. Accordingly, in order to be subject to criminal liability under
Tenn. Code Ann. § 55-10-401(a), a defendant would have to voluntarily place
himself in physical control of his vehicle.
In this case, it is undisputed that the appellant voluntarily placed himself in
physical control of his vehicle while under the influence of an intoxicant.
Therefore, we conclude that a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994), cert. denied, U.S. , 115 S.Ct. 743 (1995); Tenn. R. App. P.
13(e). See also State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied,
507 U.S. 954, 113 S.Ct. 1368 (1993); State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429 (1984).
The judgment of the trial court is affirmed.
____________________________________
1 An objective of the criminal code is to “give fair warning of what conduct is prohibited, and guide the exercise of official discretion in law enforcement, by defining the act and the culpable mental state which together constitute an offense.” Tenn. Code Ann. § 39-11-101(2) (1991). Although the driving while intoxicated statute eliminates the necessity for a culpable mental state, the statute does not eliminate the necessity for some “act.” Tenn. Code Ann. § 55- 10-401(a); Tenn. Code Ann. § 39-11-102(b); Tenn. Code Ann. § 39-11-301(b).
6 DAVID G. HAYES, Judge
CONCUR:
_________________________________ JOE B. JONES, Presiding Judge
_________________________________ PAUL G. SUMMERS, Judge