### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 14, 2002 Session
STATE OF TENNESSEE v. TIMOTHY M. HODGE Direct Appeal from the Circuit Court for Hickman County No. 00-5108CR-II Timothy L. Easter, Judge

No. M2001-03168-CCA-R3-CD - Filed July 26, 2002

The defen dant app eals his conviction for driving under the influence. He raises two issues: (1) whether the evidence was sufficient to support his conviction; and (2) whether the trial court erred in its instruction to

th e jury regarding the definition of “physical control” of a vehicle. After a review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G

. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTONand J AMES C URWOOD W ITT , J R ., JJ., joined. Ken Quillen, Nashville, Tennessee, for the appellant, Timothy M. Hodge. Paul G. Summers, Attorney General and Reporter; Renee W. Turner,Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kenneth K. Crites, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
The de fendan t was driving his tru ck on February 13 , 2000, on Missionar y Ridge Road in Hickman County, Tennessee, when he lost control of the vehicle, ran off

the road, and got s

tuck in a field at the bottom of a ravine. Deputy Carl Hutchinson testified that while onpatrol, he saw the defendant’s truck “off in a big hole.” Deputy Hutchinson stated it appeared the defendant was trying to drive the truck ou

t of the ravine. H

utchinson said

the defendant smelled strongly of alcohol and appeared to be intoxicated. Trooper Kent Montgomery te

stified he was disp

atched to the accident

at approximately 2:00 a.m. Montgomery stated he observed the defendant’s truck off the s ide of the road down a steep embankment

in a field at least 80 or 90 feet from the road. He testifiedthe truck had to be pulled from the ditch.-2-

When Trooper Montgome ry arrived, the d

efendant was se

ated in the back o

f Deputy Hutchinson’s car. Montgomery testified the defendant appeare d to be intoxicated and failed two field sobriety tests, the finger-to-nose test and the o ne leg stand. According to the trooper, the defendant said he drank four be

ers at the Key We

st Restaurant. Mont

gomery opined it

appeared the defendant drank more than four beers. The trooper did not recall seeing alcohol in the defendant’s truck. Montgomery sai d ther e was no indicatio n the defendant w

as injured, and he

did not recall the defendant saying he was injured. Montgomer y testified the def

endant passed out

while Montgomery was preparing paperwork. Montgomery stat ed the d efendant’s blood was drawn at 5:30 a.m. for a blood alcoho l test. TBI forensi c scientist Louie K

uykendall testifie

d the test indicated the defendant’s blood alcohol level was .15 %.
Lisa Hodge, the defendant’s wife, testified she and the defendant met at Key West Restaurant at about 8 p.m. She said the defendant drank two beers and was not intoxicated when they left the restaurant at 9:30 p.m. in

separate vehicles. She described the weather tha

t evening as cold a

nd said it was raining and sleeting. She testified she told the defendant she planned to visit her sister who lived on Missionary Ridge Road. The defendant testified he met his wife at the restaurant at about 8 p.m.; he had two beers; they left in separate

vehicles about 9:30 p.m.; and it was cold and had started to sleet. He testified he had nothing to drink before hewent to the restau rant. The defendant stated he bought gas and a six pack of beer after leaving the restaurant and then drove down Missionary Ridge Road looking for his wife. He said he did not drink any of the beer in the six pa ck while he was driving. He testified that about 10 p.m., he rounded a curve a nd s aw two dogs in the road. He said he steered to avoid the dogs, lost control of the truck, went into a spin, struck a mailbox or post, and slid backward into the ravine. He described the ravine as being 12 to 15 feet deep. T he de fendant testified the truck was stuc k and could

not be driven. He denied he was impaired at the time of the accident.
The defendant stated theaccident knocked his shoulder out of socket; he was in much pain; and he was unable to lift his arm. The defendant stated he remained in the truck, sat in the cab, and left the truck running with the heater on. He testified that

after approximately 30 minutes passed and no other cars drove by, he decided to drink the beer he had purchased. He stated he waited in the truck between an

hour and a half to two hours before the deputy discovered the truck in the ditch. He said he drank the entire six pack while he waited and a dmitted he became intoxicated. He testified he did not try to move the truck.
The defendant testified he told the officers how the accident occ urred. He also sa

id he told Deputy Hutchinson he had injured his shoulder and complained to him that he could not move his arm; he said he thought H

utchinson told the tr

ooper about his

shoulder. He said the injury hampered his pe rformance of the field sobriety tests. The defendant denied passing out in the officer’s car, explaining he fell asleep because he was tired.-3-

Defendant

also identified a self-made videotape, which was played for the jury, depicting the curve in the road where the accident occurred. In rebuttal, Trooper Montgomery testified the accident occurred at a different location than that depicted in the videotape. The jury convicted the defendant of driving under the influence.

I. SUFFICIENCY OF THE EVIDENCE
The defendant argu

es the evidence

was not sufficien

t to support his conviction. We do not agree.
In Tennessee, gr

eat weight is g

iven to the result r

eached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all c onflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id. ; Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Mor eov er, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a

presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (T enn. 1973). The a

ppellant has the burden of overcoming this presumption of guilt. Id.
Where sufficiency

of the evidence

is challenged, the relevant question for an appellate court is whether, after

viewing the evid

ence in the light

most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes b

eyond a re

asonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Abrams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony ar

e matte rs entrusted e xclusively to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542, 547 (T enn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
It is unlawful to drive or be in physical control of an automobile or other motor driven vehicle on any of the public roads, streets, alley s and highways or any othe r pr emises gene rally frequented

by the public at large while under the influence of an intoxicant. Tenn. Code Ann. § 55- 10-401(a)(1).
The defendant contends he was not under the influence until after his vehicle became stuck in the field at the bottom of the steep embankment. The defen dant argues he could not be found guilty of driving under the influence because (1) he was not in physical control of the vehicle at that time, and (2) the ve hicle wa s located in a field. It may well be the defe ndant could not be found guilty of driving under the influence solely for his actions occurring after the vehic

le was stuck in the field since the ve

hicle was not lo

cate d on a road, high

way, stree

t, alley, or

premises gener

ally frequented

by the public at large. See id . However, we view the evidence d iff erently than the defendant.1 According to defendant’s tes timony, he ran off the road at about 10:00 p.m. and waited about two hours before the deputy arrived. This would, therefore, be a bout midn igh t. The depu

ty d id not t est if y as to t he t imehe arrived at the
sce ne; however , Tr

oope r Montgo mery

te st if ied he r ece ive d th e di spa tch at abo ut 2 :00

a.m
. -4- During jury deliberations, the jury asked the trial co urt, “What do you consi der legally driving? Man behind wheel with motor running?” The trial court then gave t he jury the pattern ins truction defining “physical control.” See T.P.I. - CRIM 38.06 ( 5th ed. 2000). The defendan t argues we must infer fro

m the jury’s questio

n that it found the de

fendant did

notbecome intoxicated until after the truck left the roa d and became stuc

k in the field; ther

efore, he argu

es, the evidence was insufficient

to support the jury ’s verdict. We will not speculate as to the reason for the jury’s question. We are without a uthority to make suc

h an inference

or assume

the jury reached its verdict as defendant sug

gests

. Viewing the evidencein a light most favorable to thestate, as we must, the evidence is more than sufficient

to establish the defendant was under the influence at the time he ran off the road.The defendant testified he cons

umed beer at the r

estaurant, altho

ugh he said

he had only two. Trooper Mon tgom ery, however, testifi ed the defendan

t told him he drank f

our beers at the r

estaurant. Depu

ty Hutchinson said the defendant was trying to drive the truck out of the ravine when Hutc hinson first arrived on the scene. Further, the officers testified the defendant appeared to be intoxicated, and the test showed the defendant’s blood alcohol level was .15%. Although the defendant’s wife testified the defendant was not

intoxicated when he left the restaurant and the defendant testified the accident occurred at 10 p.m., the jury was not requ ire d to accr edi t th eir tes tim ony. 1 Therefore, we conclude the evidence was sufficient to establish the defendant was under the influence of

an intoxicant at the time he ran off the road.

II. JURY INSTRUCTION ON PHYSICAL CONTRO L
The defendant furth

er argues the

trial court’s i

nstruction on the definition of “physical control” was not a

clear and distinc

t exposition of the law . This issue is without merit.
The trial court charged the jury pursuant to the standard cha rge app l icable to the determination of a driving under the influence case, which did not include a special definition of the term“physical control.” See T.P.I.- CRI M 38.01(5th

ed. 2000). As previous ly s tated, during the jury’s deliberations it po

sed the following q

uestion to the trial court: “What do yo u consider legall

y driving? Man behind wheel with motor running?” The trial court r esponded to

the jury’s question witha written instruction which included the explanation of “physica l con trol” set forth in Tennessee Patte

rn Jury Instructio

n 38.06. That char

ge stated:
For a person to be in physical control of a motor vehicle, the person must be present, at or near a motor vehicle and must have the ability to determine whether or not such motor vehicle is moved, and, if so, to where it is moved. It is not necessary that the motor of a-5- motor vehicle

be running or

capable of star

ting for a person t

o be in physical control of su

ch a vehicle. A person may be in physical control of a m ot or vehicle without driving, starting or moving the motor vehicle. T.P.I.- CRIM 38.06 (

5th ed. 2000).
After the jury announced it had reached a verdict but prior to the jury being brought into the courtroom,the defendant orally requested an additional jury instruc ti on stating the jury must find beyond a reasonable doubt the vehicle “was movable at the time he was under the influence.” The trial court replied tha

t the defendant’ s request

came too late because the jury had reache

d its verdict.
Our state supreme co

urt has held a find

er of fact should

consider th

e “t ota lit y o f the circumstances”

in determining whether the defendant was in phy s ical control of an automobile. State v. Lawrence , 849 S.W.2d 761, 765 (Tenn. 1993). The trier of fact is allowed to cons ider a number of factors, including the location of the defendant in relation to the vehicle; the location of the ignition key ; whether the motor was running; the

defendant’s ab

ility, but for

his intoxication, to direct the use or non-use of the vehicle, and the extent to which the vehicle is capable of

operation or movement under its own power or otherwise. Id. Although Tennessee Pattern Jury Instruction 38.06 does not advise the jury to consider

the totality of the circumstances pursuant to Lawrence , it is not an erroneous statement of the law. See Statev. Johnny Wade

Meeks , No. 03C01-9811-CR-00411, 1999 Tenn. Crim. App. LEXIS 1218, at *15 (Tenn. Crim. App. Dec. 3, 1999, at Knoxville), perm. to app. denied (Tenn. 2000). Instead, the failure to instructthe jury regarding its duty to consider

the totality of the circumstances can best be described as the omission of an instruction. Id.
Alle ged omiss ions in a jury charge must be

called to the tria

l court’s attentio

n at trial; otherwise, an objection to the omission is waived. State v. H aynes , 720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986). While

the defendant did generally object to the jury instruction, his objection was basedo n his insistence that the definition of p

hysical con

trol should state “i

t must be a moveable automobile.” As the Tennessee Supreme Court stated in Lawrence , whether the veh icle is “capable of being operated

or moved under its o

wn power or other

wise” is just one of

a number of fact

ors to be c on sidered in determining whether the accused was in physica l control of the vehicle. 849 S.W.2d at 765. Further,

the defendant did

not object in the tri

al court to the omiss

ion of the “totality of the circumstances” language as prescribed in Lawrence ; he simply requested an instruction stating the vehicle must be “m

oveable at the time he was u

nder the influenc

e.” He urges f

or the first

time on appeal that the trial court should have given a supplementary instruction that trac ks the Lawrence language. An a ppellant c annot change theories from the trial court to

the appellate court. State v. Dooley , 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000)

. We further note the defendant did not place his re

quested jury

instruction in

writing. A trial court will not be placedin error where a requested instr

uction is not in writing. State v. Mackey , 638-6-

S.W.2d 830, 836 (Tenn. Crim. App. 1 982); Tenn. R. Crim. P. 30(a). The def

endant did

not request this special instructi

on prior to

the regular jury charge a

nd voiced no objection to the origi nal charge which did notcontain an instruction on the definition of “physical control.” Althoug

h he offered to reduce his request to writing after the trial c

ourt's special i

nstruction, his off

er did not come unti

l after the jury sen

t word it had reac

hed a verdict.

Under these circumstances, we conclude the trial court did not err in finding the request came too late. For these reasons, the defendant is not entitled to relief on this issue. Accordingly, the judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE