IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED OCTOBER 1998 SESSION December 21, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9710-CC-00445 Appellee, ) ) HICKMAN COUNTY VS. ) ) HON. CORNELIA A. CLARK, DAVID T. JONES, ) JUDGE ) Appellant. ) (DUI, 3rd Offense)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
ELAINE B. BEELER TIMOTHY F. BEHAN Assistant District Public Defender Assistant Attorney General 407-C Main Street Cordell Hull Building, 2nd Floor P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR. District Attorney General
RONALD L. DAVIS Assistant District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The defendant, David T. Jones, appeals his conviction for driving under
the influence of an intoxicant, third offense. The defendant was sentenced to
eleven (11) months and twenty-nine (29) days and fined $1,500. On appeal, he
raises the following issues for review:
(1) whether the trial court erred by failing to declare a mistrial after a trooper testified the defendant had recently been released from jail;
(2) whether the evidence was sufficient to convict the defendant of DUI; and
(3) whether the trial court correctly sentenced the defendant.
The judgment of the trial court is AFFIRMED.
FACTS
The defendant was discovered in the early evening of November 7, 1995,
trapped in his wrecked vehicle in Hickman County. His vehicle had left the
roadway and struck a tree. The vehicle’s passenger door remained blocked by
the tree. Emergency personnel were forced to cut the driver’s door open in order
to remove the defendant from the wreckage. The vehicle’s engine was still warm
when the paramedics arrived.
The defendant was uncooperative with the emergency personnel at the
scene. Trooper Kent Montgomery, who arrived at the scene shortly after the
paramedics, testified that the defendant smelled “like he had been drinking an
alcoholic beverage.” Paramedics Brian Qualls and Paul Smith also testified that
they smelled alcohol on the defendant. Smith stated the defendant’s speech
was slurred and that he was “thick-tongued.” Both Qualls and Smith described
the defendant as appearing “intoxicated.” Trooper Montgomery testified the
2 defendant was “extremely intoxicated.”
When the trooper attempted to administer the horizontal gaze nystagmus
field sobriety test, the defendant closed his eyes. The defendant later refused
medical treatment as well as a chemical analysis of his blood alcohol content.
The defense offered no proof at trial.
MISTRIAL
During Trooper Montgomery’s testimony, he related that when he asked
for the defendant’s driver’s license, the defendant responded that he did not
have one because he “had just got out of jail.” Defense counsel immediately
moved for a mistrial. The trial court denied the mistrial and gave the jury the
following curative instruction:
Ladies and gentlemen, the last question and answer are being stricken and I want to instruct you to disregard it and to assume that you never heard it. In a case like this an individual is permitted, with some restrictions, to testify about what a defendant may have said, but it’s not actually being introduced for the truth. At this point neither the trooper nor any of us have any way of knowing if the statements made were even the truth. The fact that somebody may have recently come from a jail somewhere doesn’t have anything to do with anything, because there is no proof in the record as to what that may have meant, whether somebody was visiting or anything, and that does not in any way suggest, even if true, or doesn’t have any relevance to this case, and at this point in this case we don’t even know whether those statements, if made, were true. So you must disregard those, consider as though you had never heard them.
The determination of whether to grant a mistrial rests within the sound
discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994).
The reviewing court should not overturn that decision absent an abuse of
discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The
3 burden of establishing the necessity for mistrial lies with the party seeking it.
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this
determination, no abstract formula should be mechanically applied, and all
circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,
322 (Tenn. 1993).
The trooper’s comment was wholly unsolicited by the state. The trial court
immediately instructed the jury at length as to why they were not permitted to
consider it in their deliberations. The jury is presumed to have followed the trial
court’s curative instructions, absent evidence to the contrary. State v. Smith, 893
S.W.2d 908, 914 (Tenn. 1994); State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996). In view of these matters as well as the overwhelming
evidence of guilt, we conclude the defendant was not unduly prejudiced by the
trooper’s remark.
This issue is without merit.
SUFFICIENCY OF THE EVIDENCE
The defendant contends the state did not sufficiently prove that he was
under the influence of an intoxicant and in physical control of the vehicle. He
alleges the evidence of intoxication consisted solely of witnesses testifying to
what they smelled, and the only evidence that he was in physical control of the
vehicle was circumstantial.
When an accused challenges the sufficiency of the convicting evidence,
our standard of review is whether, after reviewing the evidence in a 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Questions
4 concerning the credibility of the witnesses, the weight and value to be given the
evidence as well as all factual issues raised by the evidence, are resolved by the
trier of fact, not this Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim.
App. 1995). Nor may this Court reweigh or re-evaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to
the strongest legitimate view of the evidence and all inferences therefrom. Id.
Because a verdict of guilt removes the presumption of innocence and replaces it
with a presumption of guilt, the accused has the burden in this Court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED OCTOBER 1998 SESSION December 21, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9710-CC-00445 Appellee, ) ) HICKMAN COUNTY VS. ) ) HON. CORNELIA A. CLARK, DAVID T. JONES, ) JUDGE ) Appellant. ) (DUI, 3rd Offense)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
ELAINE B. BEELER TIMOTHY F. BEHAN Assistant District Public Defender Assistant Attorney General 407-C Main Street Cordell Hull Building, 2nd Floor P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR. District Attorney General
RONALD L. DAVIS Assistant District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The defendant, David T. Jones, appeals his conviction for driving under
the influence of an intoxicant, third offense. The defendant was sentenced to
eleven (11) months and twenty-nine (29) days and fined $1,500. On appeal, he
raises the following issues for review:
(1) whether the trial court erred by failing to declare a mistrial after a trooper testified the defendant had recently been released from jail;
(2) whether the evidence was sufficient to convict the defendant of DUI; and
(3) whether the trial court correctly sentenced the defendant.
The judgment of the trial court is AFFIRMED.
FACTS
The defendant was discovered in the early evening of November 7, 1995,
trapped in his wrecked vehicle in Hickman County. His vehicle had left the
roadway and struck a tree. The vehicle’s passenger door remained blocked by
the tree. Emergency personnel were forced to cut the driver’s door open in order
to remove the defendant from the wreckage. The vehicle’s engine was still warm
when the paramedics arrived.
The defendant was uncooperative with the emergency personnel at the
scene. Trooper Kent Montgomery, who arrived at the scene shortly after the
paramedics, testified that the defendant smelled “like he had been drinking an
alcoholic beverage.” Paramedics Brian Qualls and Paul Smith also testified that
they smelled alcohol on the defendant. Smith stated the defendant’s speech
was slurred and that he was “thick-tongued.” Both Qualls and Smith described
the defendant as appearing “intoxicated.” Trooper Montgomery testified the
2 defendant was “extremely intoxicated.”
When the trooper attempted to administer the horizontal gaze nystagmus
field sobriety test, the defendant closed his eyes. The defendant later refused
medical treatment as well as a chemical analysis of his blood alcohol content.
The defense offered no proof at trial.
MISTRIAL
During Trooper Montgomery’s testimony, he related that when he asked
for the defendant’s driver’s license, the defendant responded that he did not
have one because he “had just got out of jail.” Defense counsel immediately
moved for a mistrial. The trial court denied the mistrial and gave the jury the
following curative instruction:
Ladies and gentlemen, the last question and answer are being stricken and I want to instruct you to disregard it and to assume that you never heard it. In a case like this an individual is permitted, with some restrictions, to testify about what a defendant may have said, but it’s not actually being introduced for the truth. At this point neither the trooper nor any of us have any way of knowing if the statements made were even the truth. The fact that somebody may have recently come from a jail somewhere doesn’t have anything to do with anything, because there is no proof in the record as to what that may have meant, whether somebody was visiting or anything, and that does not in any way suggest, even if true, or doesn’t have any relevance to this case, and at this point in this case we don’t even know whether those statements, if made, were true. So you must disregard those, consider as though you had never heard them.
The determination of whether to grant a mistrial rests within the sound
discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994).
The reviewing court should not overturn that decision absent an abuse of
discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The
3 burden of establishing the necessity for mistrial lies with the party seeking it.
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this
determination, no abstract formula should be mechanically applied, and all
circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,
322 (Tenn. 1993).
The trooper’s comment was wholly unsolicited by the state. The trial court
immediately instructed the jury at length as to why they were not permitted to
consider it in their deliberations. The jury is presumed to have followed the trial
court’s curative instructions, absent evidence to the contrary. State v. Smith, 893
S.W.2d 908, 914 (Tenn. 1994); State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996). In view of these matters as well as the overwhelming
evidence of guilt, we conclude the defendant was not unduly prejudiced by the
trooper’s remark.
This issue is without merit.
SUFFICIENCY OF THE EVIDENCE
The defendant contends the state did not sufficiently prove that he was
under the influence of an intoxicant and in physical control of the vehicle. He
alleges the evidence of intoxication consisted solely of witnesses testifying to
what they smelled, and the only evidence that he was in physical control of the
vehicle was circumstantial.
When an accused challenges the sufficiency of the convicting evidence,
our standard of review is whether, after reviewing the evidence in a 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Questions
4 concerning the credibility of the witnesses, the weight and value to be given the
evidence as well as all factual issues raised by the evidence, are resolved by the
trier of fact, not this Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim.
App. 1995). Nor may this Court reweigh or re-evaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to
the strongest legitimate view of the evidence and all inferences therefrom. Id.
Because a verdict of guilt removes the presumption of innocence and replaces it
with a presumption of guilt, the accused has the burden in this Court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
As to the defendant’s intoxication, three (3) witnesses testified that the
defendant smelled of alcohol and had slurred speech. Each testified he
appeared intoxicated. Further, he refused to submit to field sobriety and blood
alcohol tests. The defendant also refused medical treatment when he learned
the hospital staff would use any blood sample taken, in part, to determine blood
alcohol content. Viewed in a light most favorable to the state, there was
sufficient evidence to find the defendant was under the influence of an intoxicant.
Regarding “physical control” of the vehicle, the Tennessee Supreme Court
has previously analyzed cases in which a defendant is discovered in a situation
similar to the defendant in the instant case. See State v. Lawrence, 849 S.W.2d
761, 763 (Tenn. 1993). The Court initially noted that circumstantial evidence can
be sufficient to sustain a DUI conviction. Id. The Court further held that a totality
of the circumstances approach should be utilized in determining whether the
defendant was in “physical control” of the vehicle for the purposes of Tenn. Code
Ann. § 55-10-401(a).
Following this approach, there is sufficient evidence that the defendant
was in “physical control” of the vehicle as contemplated by Tenn. Code Ann. §
5 55-10-401(a). The defendant’s suggestion that another person could have been
driving the vehicle and disappeared after the wreck is not compelling. The
testimony at trial revealed the defendant’s feet and legs were pinned beneath the
steering wheel. It defies logic to suggest that another person actually drove the
vehicle, survived the crash uninjured, and then escaped through the shattered
rear window leaving the defendant with his legs pinned under the steering wheel.
The jury was at liberty to reject such a scenario.
SENTENCING
The defendant contends in his final issue that the trial court erred in
imposing a sentence of eleven (11) months and twenty-nine (29) days
incarceration rather than the statutory minimum time in jail, 120 days. He alleges
the trial court gave undue weight to the fact that he pled guilty to DUI, second
offense, only four (4) days prior to his arrest for this, his third DUI offense. The
defendant further alleges the trial court used inapplicable enhancement factors in
arriving at the maximum sentence.
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). If the trial
court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997). The burden is upon the appealing party to show that the sentence
is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
6 Comments.
The defendant is correct in his assertion that the trial court placed great
emphasis on the fact that the instant offense was committed only four (4) days
after he pled guilty to the identical crime. It found this repeat behavior showed
an unwillingness to comply with conditions of a sentence involving release into
the community. Tenn. Code Ann. § 40-35-114(8). However, the application of
this enhancement factor requires a “previous history” of unwillingness to comply
with sentences involving release into the community. Id. Thus, this
enhancement factor was improperly applied. See State v. Hayes, 899 S.W.2d
175, 186 (Tenn. Crim. App. 1995).
The trial court also applied enhancement factors (10) and (16); namely,
the defendant had no hesitation about committing a crime when the risk to
human life was high, and the crime was committed under circumstances under
which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-
35-114(10), (16). These factors were erroneously applied as the record does not
establish that other persons were actually threatened by the defendant’s
conduct. See State v. Rhodes, 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995).
However, the trial court stated it gave little weight to these factors.
We, nevertheless, agree with the trial court’s assessment of the
defendant’s amenability to rehabilitation. Although committing the present
offense only four (4) days after another DUI conviction does not give rise to
enhancement factor (8) as discussed above, the trial court correctly noted this
establishes that measures less restrictive than confinement had recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1)(C).
The trial court properly gave this sentencing principle great weight.
Tenn. Code Ann. 55-10-403(c) mandates a sentence of eleven (11)
7 months and twenty-nine (29) days 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. State v. Combs, 945 S.W.2d
770, 774 (Tenn. Crim. App. 1996). Thus, the issue before this Court is whether
the trial court erred in imposing the maximum sentence of actual confinement.
We decline to reduce the sentence. The erroneous application of
enhancement factors does not necessarily require a reduction of the sentence.
See State v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998). This is the
defendant’s third conviction for DUI. It was committed only four days after he
pled guilty to DUI, second offense. The defendant appears to be a danger to
others as well as himself and has failed to show that the sentence was improper.
Accordingly, the judgment of the trial court is AFFIRMED.
_________________________ JOE G. RILEY, JUDGE
CONCUR:
_________________________ PAUL G. SUMMERS, JUDGE
_________________________ JOSEPH M. TIPTON, JUDGE