IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1999 SESSION September 24, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9812-CC-00486 Appellee, ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE, TROY RANDALL JOHNSON, ) JUDGE ) Appellant. ) (Joyriding, DUI, Driving On Revoked ) License)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH PAUL G. SUMMERS Contract Appellate Defender Attorney General and Reporter One Public Square, Suite 321 Clarksville, TN 37040 CLINTON J. MORGAN (On Appeal) Assistant Attorney General Cordell Hull Building, 2nd Floor ANDREW JACKSON DEARING III 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0493 105 South Main P.O. Box 1119 W. MICHAEL McCOWN Fayetteville, TN 37334-1119 District Attorney General (At Trial and On Appeal) ROBERT G. CRIGLER Assistant District Attorney General One Public Square, Suite 100 Shelbyville, TN 37160-3953
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY, JUDGE OPINION
A Bedford County Grand Jury indicted defendant, Troy Randall Johnson, for
theft of property over $1000, driving under the influence (DUI) third offense, and
driving on a revoked driver’s license (DORL) third offense. After a jury trial, he was
convicted of joyriding, DUI third offense, and DORL third offense, all Class A
misdemeanors. The trial court sentenced defendant to an effective sentence of
nineteen months and fifteen days. On appeal, defendant challenges: (1) the
sufficiency of the evidence, and (2) his sentences. After a thorough review of the
record, this Court MODIFIES the sentence for DUI to conform to the statutory
requirement, but AFFIRMS the trial court’s judgment in all other respects.
FACTS
In the early morning hours of January 9, 1998, defendant was involved in a
one-vehicle accident off Highway 64 in Bedford County. Law enforcement
personnel responded to the scene and found local farmer Chuck Hawkins’ 1992
GMC pickup at the bottom of a ravine. The truck had rolled several times, and the
injured defendant was found on the ground about fifteen feet beyond the truck’s
resting place. Sheriff’s deputies found beer cans at the scene and smelled alcohol
about defendant’s person.
At trial, the state presented proof that defendant’s license was in a revoked
status. The state’s witnesses all testified that defendant was the only person in the
vicinity of the accident. Truck owner Hawkins testified that defendant, who worked
for him sporadically for eight or nine months preceding the accident, did not have
permission to use the truck at any time. The medical lab technician from the
2 hospital, where defendant was taken for his injuries, testified that the ethanol
content of defendant’s blood was above the “toxic” level. 1
The defendant presented no proof at trial.
SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence used to convict him of
joyriding, DUI, and DORL. Specifically, defendant argues that the evidence against
him was purely circumstantial and failed to establish beyond a reasonable doubt
that he was the driver of Hawkins’ truck.
When an appellant challenges the sufficiency of the evidence, the standard
of review is whether, after viewing the evidence in the light most favorable to the
state, 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, 318, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.
1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
This Court will not reweigh the evidence, reevaluate the evidence, or substitute its
evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d
93, 95 (Tenn. Crim. App. 1995).
Although the evidence of defendant’s guilt is circumstantial in nature,
circumstantial evidence alone may be sufficient to support a conviction. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Buttrey, 756 S.W.2d 718,
1 The testimony showed defendant’s blood ethanol content to be 165 mg/deciliter which the technician described as “high.” She further testified that a level between 50 and 100 mg/deciliter is considered “toxic.”
3 721 (Tenn. Crim. App. 1998). However, for this to occur, the circumstantial
evidence must be consistent with guilt of the accused, inconsistent with innocence,
and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900. While following the above guidelines, this Court must
remember that the jury decides the weight to be given to circumstantial evidence
and that “[t]he inferences to be drawn from such evidence, and the extent to which
the circumstances are consistent with guilt and inconsistent with innocence are
questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958); see also State v.Carter, 970 S.W.2d 509, 515 (Tenn. Crim. App. 1997).
In this instance, the proof showed that defendant did not have permission to
use Chuck Hawkins’ GMC pickup. It also showed defendant was the only person
found at the scene of a one-vehicle accident involving Hawkins’ pickup. There were
beer cans in the truck’s proximity, and the ethanol level in defendant’s blood stream
was “toxic.” Based upon this evidence, the jury chose to convict defendant of
joyriding, DUI, and DORL.
Deputy Body Keele testified as follows:
DEFENSE COUNSEL: . . . Is [defendant] on the other side of the truck, away from the road, or is he close to the road?
KEELE: Highway 64 runs east and west. The vehicle came to a stop facing south. The rear of the truck was facing north. [Defendant] was to the north before you got to the truck, about ten to fifteen foot (sic).
DEFENSE COUNSEL: . . . was [defendant] close to the road?
KEELE: He was further away from the road than the vehicle was.
Defendant claims that this testimony proves he was found near the
passenger side of the truck which is contrary to the premise that he drove the truck.
4 Thus, defendant argues, “the evidence . . . just as strongly supports the conclusion
that the truck in question hit [him], or that [he] was a passenger in said vehicle as
it does that [he] was the driver.” Our reading of this particular testimony does not
lead us to the same conclusion suggested by defendant.2
The weight to be given circumstantial evidence and the inferences to be
drawn from such evidence were questions for the jury. The jury in this case found
the evidence consistent with defendant’s guilt, and the trial court declared the
evidence “overwhelming” in its denial of defendant’s motion for a new trial.
This Court will not reweigh nor reevaluate the evidence.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1999 SESSION September 24, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9812-CC-00486 Appellee, ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE, TROY RANDALL JOHNSON, ) JUDGE ) Appellant. ) (Joyriding, DUI, Driving On Revoked ) License)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH PAUL G. SUMMERS Contract Appellate Defender Attorney General and Reporter One Public Square, Suite 321 Clarksville, TN 37040 CLINTON J. MORGAN (On Appeal) Assistant Attorney General Cordell Hull Building, 2nd Floor ANDREW JACKSON DEARING III 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0493 105 South Main P.O. Box 1119 W. MICHAEL McCOWN Fayetteville, TN 37334-1119 District Attorney General (At Trial and On Appeal) ROBERT G. CRIGLER Assistant District Attorney General One Public Square, Suite 100 Shelbyville, TN 37160-3953
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY, JUDGE OPINION
A Bedford County Grand Jury indicted defendant, Troy Randall Johnson, for
theft of property over $1000, driving under the influence (DUI) third offense, and
driving on a revoked driver’s license (DORL) third offense. After a jury trial, he was
convicted of joyriding, DUI third offense, and DORL third offense, all Class A
misdemeanors. The trial court sentenced defendant to an effective sentence of
nineteen months and fifteen days. On appeal, defendant challenges: (1) the
sufficiency of the evidence, and (2) his sentences. After a thorough review of the
record, this Court MODIFIES the sentence for DUI to conform to the statutory
requirement, but AFFIRMS the trial court’s judgment in all other respects.
FACTS
In the early morning hours of January 9, 1998, defendant was involved in a
one-vehicle accident off Highway 64 in Bedford County. Law enforcement
personnel responded to the scene and found local farmer Chuck Hawkins’ 1992
GMC pickup at the bottom of a ravine. The truck had rolled several times, and the
injured defendant was found on the ground about fifteen feet beyond the truck’s
resting place. Sheriff’s deputies found beer cans at the scene and smelled alcohol
about defendant’s person.
At trial, the state presented proof that defendant’s license was in a revoked
status. The state’s witnesses all testified that defendant was the only person in the
vicinity of the accident. Truck owner Hawkins testified that defendant, who worked
for him sporadically for eight or nine months preceding the accident, did not have
permission to use the truck at any time. The medical lab technician from the
2 hospital, where defendant was taken for his injuries, testified that the ethanol
content of defendant’s blood was above the “toxic” level. 1
The defendant presented no proof at trial.
SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence used to convict him of
joyriding, DUI, and DORL. Specifically, defendant argues that the evidence against
him was purely circumstantial and failed to establish beyond a reasonable doubt
that he was the driver of Hawkins’ truck.
When an appellant challenges the sufficiency of the evidence, the standard
of review is whether, after viewing the evidence in the light most favorable to the
state, 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, 318, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.
1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
This Court will not reweigh the evidence, reevaluate the evidence, or substitute its
evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d
93, 95 (Tenn. Crim. App. 1995).
Although the evidence of defendant’s guilt is circumstantial in nature,
circumstantial evidence alone may be sufficient to support a conviction. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Buttrey, 756 S.W.2d 718,
1 The testimony showed defendant’s blood ethanol content to be 165 mg/deciliter which the technician described as “high.” She further testified that a level between 50 and 100 mg/deciliter is considered “toxic.”
3 721 (Tenn. Crim. App. 1998). However, for this to occur, the circumstantial
evidence must be consistent with guilt of the accused, inconsistent with innocence,
and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900. While following the above guidelines, this Court must
remember that the jury decides the weight to be given to circumstantial evidence
and that “[t]he inferences to be drawn from such evidence, and the extent to which
the circumstances are consistent with guilt and inconsistent with innocence are
questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958); see also State v.Carter, 970 S.W.2d 509, 515 (Tenn. Crim. App. 1997).
In this instance, the proof showed that defendant did not have permission to
use Chuck Hawkins’ GMC pickup. It also showed defendant was the only person
found at the scene of a one-vehicle accident involving Hawkins’ pickup. There were
beer cans in the truck’s proximity, and the ethanol level in defendant’s blood stream
was “toxic.” Based upon this evidence, the jury chose to convict defendant of
joyriding, DUI, and DORL.
Deputy Body Keele testified as follows:
DEFENSE COUNSEL: . . . Is [defendant] on the other side of the truck, away from the road, or is he close to the road?
KEELE: Highway 64 runs east and west. The vehicle came to a stop facing south. The rear of the truck was facing north. [Defendant] was to the north before you got to the truck, about ten to fifteen foot (sic).
DEFENSE COUNSEL: . . . was [defendant] close to the road?
KEELE: He was further away from the road than the vehicle was.
Defendant claims that this testimony proves he was found near the
passenger side of the truck which is contrary to the premise that he drove the truck.
4 Thus, defendant argues, “the evidence . . . just as strongly supports the conclusion
that the truck in question hit [him], or that [he] was a passenger in said vehicle as
it does that [he] was the driver.” Our reading of this particular testimony does not
lead us to the same conclusion suggested by defendant.2
The weight to be given circumstantial evidence and the inferences to be
drawn from such evidence were questions for the jury. The jury in this case found
the evidence consistent with defendant’s guilt, and the trial court declared the
evidence “overwhelming” in its denial of defendant’s motion for a new trial.
This Court will not reweigh nor reevaluate the evidence. The evidence was
sufficient to support defendant’s convictions. This issue is without merit.
SENTENCING
In his second issue, defendant challenges the misdemeanor sentences
imposed by the trial court as “excessive under the facts and circumstances of this
case.”
At the sentencing hearing, defendant’s criminal history was introduced into
evidence without objection. Defense counsel stipulated to two prior DUI and two
prior DORL convictions. The trial court sentenced defendant to ten months for
joyriding, nine months and fifteen days for DUI, and nine months and fifteen days
for DORL. The court ordered the DUI and DORL sentences to run concurrently with
each other but consecutively to the joyriding charge.
2 If defendant were found near the passenger side of the truck, we note that the truck rolled over anywhere from two to four times. The location where defendant was found would not be determinative of this issue.
5 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).
Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302,
which provides in part that the trial court shall impose a specific sentence consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See
State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender
must be sentenced to an authorized determinate sentence with a percentage of that
sentence designated for eligibility for rehabilitative programs. Id.
We further note that the trial court has more flexibility in misdemeanor
sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d 271, 273
(Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of a felony,
is not entitled to a presumption of a minimum sentence. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832 (Tenn.
Crim. App. 1994).
A. Length of Sentences
Class A misdemeanors carry a maximum sentence of eleven months and
twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1). In each case, the trial court
set determinate sentences below the statutory maximum. It enhanced the length
of each sentence due to defendant’s history of criminal convictions. See Tenn.
Code Ann. § 40-35-114(1). The court also considered defendant’s previous
unwillingness to comply with the conditions of release into the community in that he
failed to report to serve the prescribed jail time in a Rutherford County DUI. See
Tenn. Code Ann. § 40-35-114(8).
6 These are proper considerations by the trial court in setting misdemeanor
sentences. The length of the sentences imposed is proper.
B. Consecutive Sentencing
With regard to the consecutive nature of these sentences, a court may order
sentences to run consecutively if the court finds by a preponderance of the
evidence that the defendant is a dangerous offender whose behavior indicates little
or no regard for human life, and no hesitation about committing a crime where the
risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). The trial court
properly declared defendant to be a dangerous offender noting that the DUI was a
crime involving great risk to human life. In this case the defendant was driving with
a “toxic” blood alcohol level and wrecked the vehicle.
Finally, the court is required to determine whether the consecutive sentences
(1) are reasonably related to the severity of the offenses committed; and (2) serve
to protect the public from further criminal conduct by the offender. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Although the trial court did not
recite these factors, we find through our de novo review that the sentences comport
with the Wilkerson requirements.
Imposition of consecutive sentencing in this case was proper.
C. DUI Sentence
The trial court sentenced defendant to nine months and fifteen days at 100%
for the DUI offense. Tenn. Code Ann. § 55-10-403(c) provides that DUI offenders
be “required to serve the difference between the time actually served and the
maximum sentence on probation.” A panel of this court in State v. Combs, 945
S.W.2d 770 (Tenn. Crim. App. 1996), concluded that this statute “in effect,
mandates a maximum sentence for DUI, with the only function of the trial court
being to determine what period above the minimum period of incarceration
7 established by statute, if any, is to be suspended.” Id. at 774 (emphasis added).
Thus, we conclude that the sentence imposed in this case for the DUI
conviction must be for eleven months and twenty-nine days with nine months and
fifteen days confinement followed by probation for the balance of the sentence.
CONCLUSION
Based upon the foregoing, we AFFIRM AS MODIFIED the judgment of the
trial court.
____________________________ JOE G. RILEY, JUDGE
CONCUR:
____________________________ DAVID G. HAYES, JUDGE
____________________________ L.T. LAFFERTY, SENIOR JUDGE