### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 12, 2000 S ession
STATE OF TENNESSEE v. BILLY THOMP SON Direct Appeal from the Criminal Court for Shelby County No. 98-06377-78 James C. Beasley, Jr., Judge

No. W1999-01001-CCA-R3-CD - Filed December 15, 2000

In 1995, Billy Thompson, a Missi ssippi resident,

was convicted in Shelby County of driving under the influence, resu

lting in suspension of

his driving privileg

es in th is stat e for one year. Fifteen months la ter , Thompson was aga in charged and c

onvicted of drivin

g under the influe

nce, sixth offense, reckless driving and driving while revoked, being the instant offenses before this court. On the date of the latter offenses, Thom pson possessed a valid Mississippi driver’s license, however, he had not complied with the statutory requirements fo r reinstatement o

f his driving privile

ges in this state. Thompson appeals

his convictions contending the trial court erred (1) by failing to sever the charge of driving while license revoked f rom the remaining counts a nd (2) by failing to

grant his motion for judgment

of acquittal as to t

he charge of dr

iving while license

revoked. We conclude that all charges were p

roperly joined pursuant to Tenn. R . Crim. P. 8(a). Mor

eover, we hold tha

t a nonres ident m otorist, although possessing a valid out-of-state license, may not operate a motor v ehicle in t his state following

this state’s revoc

ation of his driving

privileges until the

motorist complies withTen nessee’s reinst atement procedu

res. Because we

find the proof suf

ficient to support the challenged conviction, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court Affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.
James D. Franks, Hern ando, Miss issippi, and S. Ronald Lucchesi, Memphis, Tennessee, for the Appellant, Billy Thompson.
Paul G. Summers, Attorney Generaland Reporter, Michael Moore, Solicitor General, J. Ross Dyer, Assistant Attorney General, Wlliam L. Gibbons, District Attorney General, and Paula Wulff and Reginald Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.-2- OPINION
The Appellant, Billy Thompson, was convicted by a Shelby County jury of driving w hil e license revoked (DWLR), driving under the influence, sixth offense, and reckless driving. Thetrial court imposed respective sentences of eleven months, twenty-nine days for driving under the influence, six months for reckless driving, and a five hundred dollar fine for DWLR. The sentences for driving under the influenceand reckless driving were ord

ered to be serve

d consecutively.

In this appeal as of right, the Appellant raises two issues for this court’s review:
I. Whether the trial court’s den ial of the Appella

nt’s motion to

sever the charge of driving on a revoked license from the charges of driving under the influence and reckless driving was error; and
II. Whether, as a ma

tter of law, the A

ppellant’s driving

privileges in th

e S tate of Tennessee were automatically reinstated as evidenced by his procurement of a

valid Mississippi license after the expiration of the one-year Tennessee

revocation period. After review, w

e affirm.

Background Shortlybefore noon on July 8, 1997, Memphis Police Officer Dorothy Hyman was on patrol on Inter s tate 55 “running r adar” on northbo

und traffic. Off

icer Hyman was a

pproached by a mo

torist who informed her that “there was a truck traveling southbound on 55 running off the road. . . .” Officer Hyman, soon thereafter, observed “a tan and brown looking truck coming southbound; and he was all over the road. And there was traffic backed up behind him so badly and cars were trying to get around him.” “ [T]here was [s ic] people running off

the road trying to a

void being hit by this vehicle that was all over the road.”
After a short pursuit, Officer Hyman stopped the vehicle. Upon approaching t he driver’s side of the truck, Officer Hyman immediately noticed a strong odor of alcohol emanating from the driver, subsequently

identifi ed as the App ellant. Two bottles of alcohol were discovered in the truck. Additionally, boththe Appellant’s physical appearance and his behavior indicated that the Appellant was under the influence of an intoxicant. A DUI unit was dispatched to the scene. The Appellant refused to submit to

both a field sobrie

ty test and a brea

thalyzer test.
The Appellant, a M is sissippi resident, was in possession of a valid Mississippi license, which had been issued only se

veral hours befo

re his arrest.

At the time of his ar

rest, his Tennessee driving privilege was suspended, e ffective Marc

h 23, 1995. Following a

jury trial, the Appellant was found guilty of driving under the influence, sixth offense, reckless driving, and driving while revoked.-3- I. Severance
On May 20, 1998, the She lby County Grand Jur

y retu rned tw o indictments against the Appellant. The Appellant wa s c harged in one indictment wi th one count of driv

ing while license revoked; the remaining indictment cha rged t he Appellant with one count of driving under the influence, sixth offense, and one count of reckless driving. Apparently, the two indictments were joined pursuant to Tenn. R. Crim. P. 8(a). Prior to trial, the Appellant moved to sever the charge of driving while license revoked from the charges of driving under the influence and

reckless driving due to the prejudicial impact of the “pre-textual charge of driving while license suspended.” The trial court denied the motion. The Appellant now contests this ruling , relying solely upon this court’s holding in State v. Fleece , 925 S.W.2d 558 (Te nn. Crim. App. 1995). We do not find this court’s prior holding dispositive of the issue sub judi ce . In Fleece , the defendant was charged with driving under the influence and reckless dri ving; he was not cha

rged with driving on a restricted license. A panel of this court held t hat evide nce of the defendant’s restricted license before the jury was error unde r Tenn. R. Evid. 404(b). Fleece , 925 S.W.2d at 561. This is not the issue presently befor e this panel.
On appellate

review, this court will not reverse a trial court’s decision concerning permissive joinder and severance of offenses pursuant to Tenn. R. Crim. P. 8 and 14 absent an abuse of the trial court’s discretion. See Spicer v. State , 12 S.W.3d 438, 442-443 (Tenn. 200 0) (c iting State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)). Accordingly, this court will not interf ere with a tria

l court’s ruling unless the “court applied an incorrect legal standard, or reached a decision which i

s against logic or reasoning that caused an injustice to the party complaining.” Id. (citations omitted).
The indictments in the pr

esent case wer

e joined pursuant t

o Tenn. R. Crim. P. 8(a), requiring mandatory joinder of offenses where the offenses are based upon thesame conduct or arise from the samecriminal episode. Notwithstanding mandatory joinder, the trial court retains discretion to grant a severance of the offenses under some circumstances. See Shirley , 6 S.W.3d at 246, n .3. Rul e 14(b)(2) provides for severance of charges joined under Tenn. R. Crim. P. 8(a): (i) If before trial on motion of thestate or the defendan

t it is deemed appro

priate to promote a fair determination of the defendant’s guilt or innocence of each offense. (ii) If during trial with consent of the defendan

t it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The court shall consider whethe

r, in light of the number of of

fenses charge

d and the complexit

y of the evidence to

be offered, the trier

of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. (iii) If the Court finds merit in both a motion by the district attorney general for a continuance based upon exige nt cir cumstances that te mporarily preve

nt the state-4-

from being ready for

trial of the joined

prose cutions a

nd an objection by the defendant to the continuance based on a demand for speedy trial. . . .
Tenn. R. Crim. P. 14(b)(2). The trial court’s refusal to grant a severance un

der Tenn. R. Crim. P. 14(b)(2) will not be reversed unless the Appellant was prejudiced by the decision to try the charges together. State v. Wiseman , 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). We conclude from the evidence contained in the record that the Appellant suffered no pr ej udice from the joinder of the offenses. Accordingly, we find that the trial court did not abuse its discreti

on in denying severance of the offenses.

This issue is without m

erit. II. Revocation of Non-Resident Driving Privileges
There is no dispute that, effective March 23, 1995, the Stat e of Tenness ee revoked the Appe llant’s privilege to drive a motor vehicle upon the highways of this state for a period of one year. At this time, the a ppellant was a Mississippi resident and possessed a Mississippi driver’s license. The rev ocation pe riod in Tennessee expired on March 23, 1996. On July 8, 1997, the Appellant obtained a valid dr

iver’s license

from the State of Mississippi, his state of residency. The Appellant’s arrest on the instant offenses occurred on July 8, 1997, one year, three months and ten days after the expiration of his revocation period.
At the conclusion of the State’s proo f on this charge, the Appellant moved for a judgment of acquittal as to this count. The trial court denied the motion and, subsequently, the jury returned a guilty verdict

as to the charge of driving while license revoked. The Appellant now contends that the trial court erre

d in denying his

motion for judgment of acquittal as to this count. Specifically, he asserts that the revoca tion period expired o

n March 23, 1996, a

nd he had obtained

a valid Mississip pi dr iver’s license on July 8, 1997. Accordingly, he argues his Tennessee driving privileges had been automat ically reinstate

d at th e ex piration of the re vocation period.

The State responds that a nonresiden t’s d riving privilege is not automatically reinstated in this State at the expiration of the revocation period or upon issuance of a valid driver license from his home state. Rather, the nonr esi dent driver must satisfy certain reinstatement procedures before his driving privileges in this state may be reinstated. In rebuttal, the Appellant asserts that, if any affirmative acts are required by

a nonresident pri

or to reinstateme

nt o f Tenne ssee driving privileges, “there exists no case law, no statutory law, and no published guidelines from the State of Tennessee advising anyone who is a non-resident of the State of Tennessee that they must perform a

ny acts in order to reinstate their Tennessee driving privileges.”
The standard by which the tria l court determines a motion for judgment of acquittal at the end of all the proof is, in essence, the same standard which applies on appeal in determining the sufficiency of the evidence after a conviction; that is, whether "any rational trier of fact

could have found the esse

ntial elem ents of the crime b eyond a reasona

ble doubt." State v. Gillon , 15 S.W.3d 492, 4 96 (Tenn. Crim. App. 1997) (citing Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781 (1979)). After a conviction, the State is entitled to the strongest legitimate view of the evidence and1 The authority of this state over a nonresident is li mited to the driver’s privilege to operate a motor vehicl e on the public highways of this state . Obviously, no administrative agency nor court of this state has the aut hority t o prevent a nonresident from operating a motor vehi cle in his home stat

e or any other stat

e. -5- any reasonable inferences which might be drawn therefrom. Id. (citing Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)).
A motion for judgment of acquittal presents a question of law. Gillon , 15 S.W.3d at 496 (citing State v. Hall , 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983)). The trial judge is c

oncerned only withthe "legal sufficiency of the evidence and not with the weight of the evid

ence." Id. (citations omitted). The evidence must be viewed in the light most favorable to the State. Id. "An appellate court must apply the same standard as a trial court when resolving issues predicated upon the grant or denial of a motio

n for judgment of a

cquittal." Id.
A person who drives

a motor vehicle on

any public highway

of this state at a tim

e when the person’s priv

ilege to do so

is cancelled, susp

ended, or revoke

d commits a Class B misdemeanor. A person who drives a motor vehicle on any public highway of this state at a time w

hen the person’s

privilege to

do so is cancelled, suspended or revoked because of a conviction

for . . . driving whi

le intoxicated, sh

all be punished by confinement for

not less than two (2) days nor more than six (6) months, and there may be imposed, in addition, a fine of not more than one thousand dollars ($1,000).
T ENN
. C ODE A NN . § 55-50-504(a)(1) (Supp. 1997). There is no dispute that the A ppel lant was operating a motor vehicle on the public highways of this state. The only que stion is whether the Appellant’s drivi

ng privileges wer

e suspended at the

time of the inciden

t.
The ability to drive a motor vehicle on a public highway is not a fundamenta l "right." State
v. Booher , 978 S.W.2d 953, 956 (Tenn. Crim. App. 1997) (citing Goats v. State , 211 Tenn. 249, 364 S.W.2d 889, 891 (Tenn. 196 3); Sullins v. Butler , 175 Tenn. 468, 135 S.W.2d 930, 932 (Tenn. 1940) (citations omitted)). Instead, it is a revocable "privilege" that is gr anted upon compliance with statutory licensing procedures. Booher , 978 S.W.2d at 956 (citing Reitz v. Mealey , 314 U.S. 33, 36, 62 S. Ct. 24, 26-27 (1941), overruled in part by , Perez v. Campb el l , 402 U.S. 637, 91 S. Ct. 1704 (1971); Goats , 364 S.W.2d at 891; Sul lins , 135 S.W.2d at 932). Generally, a nonresident of the Stateof Tennessee wh

o possesses a valid

driver license f

rom his home state ha

s the privilege to

drive on Tennessee highways and is exempt from Tennessee licensing provisions. See T ENN
. C ODE A NN
. § 55-50-304(3), (4) (Supp. 1997). See also Tenn. Op. Atty. Gen. No. 83-411 (Sept. 15, 1983). The privilege of driving on Tenne ssee highways is no

t absolute; rather

, just as a resid

ent’s license to drive a motor vehicle in the State of Tennessee may be revoked, a nonresident’s privilege to drive in this state may like

wise be revoked

. 1 See generally T ENN
. C ODE A NN . § 55-50-502(d)(2) (Supp. 1997). Additionally, just a s a resident’s lic

ense is not automatically restored at the expiration of the revocation period, see generally T ENN
. C ODE A NN . § 55-50-502, the suspension of a nonresident’s privilege to operate a motor vehicle on the highways of thi

s state “does not a

utomatically

spring to life at the end of the pe

riod of ineligibility

, as if the o rder never had been entered. . . .” See-6-

Co lorado Dept. of Revenue , Motor Vehicle Di

v. v. Smith , 640 P.2d 1143, 1145 (Colo. 1982) ( e n banc ) (quoting People v. Lessar , 629 P.2d 577 (C ol o. 1981)); see also State v. Banicki , 933 P.2d 571, 573 (Ariz. App. 1997) (driving privileges not automatically restored). The completion of the period of revocationmerely makes the nonresident drive

r eligible for reinstatement of his Tennessee driving privileges. See T ENN
. C ODE A NN . § 55-50-502(d)( 1); -(e)(3); see also Tenn. Op. Atty. Gen. No. 86-097 (May 19, 1986) (“[o]nce a license or driving privileges have been suspended under t

his chapter, the motorist may restore his privileges by satisfying cer tain requi rements which usu ally include the payment

of a restoration fee.”). Indeed, while a nonresident holding a valid out-of-stat

e driver license need not o

btain a valid

Tenn essee driver license to comply with reinstatement requirements

following a suspension, he is obligated to “make application . . . as provided by law, butthe department shall not issue a new license unless and until it is satisfied after investigation of the character, habits and drivi ng ability of such person that it will be safe to grant the privilege of driving a motor vehicle on the p ublic highways.” SeeT ENN
. C ODE A NN
. § 55-50-502(e)(3). Additionally, our la

w provides: (b)(1) In addition to all other requirements of law, prior to reinstating the driving privileges and/or reissuing a driver license to any person who has been convicted of the offense of driving while under the influence, the department shall require certification that all

fines and costs have be

en paid to the

court of jurisdict

ion. Such certification sh

all be made upon a

form supplied by the

department and sh

all indicate the fines and costs levied by the court, that all fines and costs have been paid to the court, or that the fines and/or costs were waived as a result of the person being found to be indigent by the court, if such cou

rt is located within this state. The form shall be completed

and certified by the clerk of the court of jurisdiction; however, it is the sole responsibili

ty of the individual see

king reinstatemen

t or re issuance to obtain the certification and present it to the department. (b)(2) Persons convicte

d of any other off

ense requi ring mandatory revocation of driving privileg e s shall be required to present the same certification in subdivision (b)(1) prior to reinstatement of driving privileges and/or the reissuance of a driver license.
T ENN
. C ODE A NN . § 55-50-303(b) (Supp. 1997)(emphasis added).
Under Tennessee’s statutory requirements, a nonresident whose Tennessee privilege to drive has been suspended is not extended the privilege to drive in Tennessee until the period of suspension has expired and

the nonresident has complied with the reinstatement procedures even though he is in possession of a valid driver license issued by his state of residen ce. There is no p roof that the Appellant complied with

the reinstatement

procedures. Indeed, the proof introduced revealed that the Appellant’s driving privilege in this state was suspended. Absent proof of complian ce with reinstatement

procedures, theevidence is sufficient to supp

ort a conviction f

or driving while lic

ense revoked. Accordingly, we conclude that the trial court properly denied the Appellant’s motion for judgment of acquit

tal.-7-

After review of the record, we affirm the judgments of conviction entered by the trial court.

___________________________________ DAVID G. HAYES, JUDGE