State v. Harless

607 S.W.2d 492, 1980 Tenn. Crim. App. LEXIS 323

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 24, 1980
• Status: Published

Opinions

OPINION

TATUM, Judge.

At a bench trial, George Harless was convicted of driving while intoxicated (third offense) for which he was sentenced to eleven months and twenty-nine days in the county jail, and a fine of $1,000 was imposed. He was also found guilty of leaving the scene of an accident, and punishment was fixed at 30 days in jail and a fine of $50.00. The jail sentences were ordered to run consecutively.

The defendant concedes that the judgment of conviction for leaving the scene of an accident is a correct judgment supported by the evidence; he assigns no error with respect to this conviction. His only assignment of error attacks the weight and sufficiency of the evidence in the driving-while-intoxicated case.

Thus, because the defendant offered no evidence on his behalf, the State’s proof remained uncontradicted. At about 5:15 P.M. on August 5, 1979, officers of the Kingsport Police Department, in responding to a disturbance call, observed the defendant. He was an unwelcomed visitor at a lady’s residence. When observed by the officers, he was unsteady on his feet; his speech was slurred; his face was flushed; and he had a strong odor of alcoholic beverage on his breath. The defendant “seemed more or less carefree, just didn’t care what happened.” After leaving the residence, he walked to another residence in the neighborhood, but he was not welcomed there, also. The officers accordingly “put him out” of the second residence. The officers testified that they did not arrest the defendant, because he lived in the neighborhood and was not endangering himself or anyone else at that time.

About one hour later, he had procured an automobile, subsequently sideswiped a parked automobile when he passed it, and then left the scene of the accident. The officers immediately obtained a warrant for the defendant’s arrest but were unable to locate him during the following week. The defendant turned himself in to the police a little more than one week later.

The defendant insists that the evidence of his intoxication is insufficient to support the finding that he was intoxicated; he does not question the evidence identifying him as the driver of the hit-and-run automobile. We find overwhelming evidence to support the trial judge’s finding that the defendant was intoxicated while driving. Since the defendant left the scene, there was no direct evidence of his condition at the moment the accident occurred, but the crime can be established by circumstantial evidence. Duchac v. State, 505 (Tenn.1973). There was strong evidence that the defendant was “obviously intoxicated” about one hour before the traffic accident. He caused the accident by striking a parked vehicle. The trial judge also considered the defendant’s flight .after the accident. See Pulley v. State, 506 S.W.2d 164 (Tenn.Cr.App.1973); Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971). We find sufficient evidence to support a finding by a rational trier of fact of guilt beyond a reasonable doubt. Rule 13(e), Tennessee Rules of Appellate Procedure.

Though not made an issue for review by the defendant, we have considered the question of whether the trial judge has the constitutional power to impose a fine of more than $50.00. Metzner v. State, 128 Tenn. 45, 157 S.W. 69, 70 (1913), and other cases, hold that Article VI, Section 14 of the Tennessee Constitution prohibits a judge from imposing a fine in excess of $50.00 and that this provision of the Constitution cannot be waived. However, the Supreme Court has since adopted Rule 5(c)(2) T.R. Cr.P., purporting to empower judges to impose “any fine or jail sentence prescribed by law for such misdemeanor” when the defendant waives a jury trial. The adoption of this rule by the Supreme Court persuades us that the Court now considers that the provisions of Article VI, Section 14, may be waived by the defendant.

Since the defendant makes no attack on his conviction for leaving the scene of an accident, he is denied bail with respect to this case pending any disposition of an application to the Supreme Court for permission to appeal. The bail bond pending disposition of any application for permission to appeal the driving-while-intoxicated case to the Supreme Court will remain at $5,000. Rule 8(c), Tennessee Rules of Appellate Procedure.

The judgments of the trial court are affirmed.

DWYER and SCOTT, JJ., concur.