### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 9, 2002 STATE OF TENN ESSEE v. HAROLD J. TURNER Direct Appeal from the Criminal Court for Shelby County

No. 00-09301 Chris Craft, Judge

No. W2001-02613-CCA-R3-CD - Filed Septem ber 4, 2002

The defendant, Harold J. Turner, was convi cted of driving under the influence (“DUI”) and sentenced to e le ve n m on th s, tw en ty- ni ne da ys i n t he co un ty w or kh ou se , w it h a ll bu t s ev en da ys suspendedand the balance to be served on proba tion. I n addition , his drive

r’s lice nse was revoked for one year and

he was or dered to attend a lcohol sa fety school and pay

a fine of $500. I n his appe al, the defendant argues that the trial court should have instructed the jury to consider whe ther he was guilty of driving while impaired without first having to de ter mi ne t hat he w as n ot gui lt y of D UI. Following our review, we aff irm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed A LAN E. G LENN , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and N ORMA M C G EE O GLE , JJ., joined. Tony L. Axam, Atlanta, Georg ia (on ap peal), a nd William Mo nroe, Me

mphis, Tennessee (at trial), for the appellant, Harold J. Turner. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Will iam L. Gibbons, District Attorney General; and James Lammey , Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION FACTS The State’s first witness was Officer Carl Dy er of the Germantown Police Department who test ified that while on duty on Febr uary 3, 2000, he obse

rved an automobile strike the curb thre e times as he was observing traffic at the Carr efour Ma ll on Poplar

Avenue. He stoppe d the vehi cle after seeing it “dart a cross la nes o f tra ffic, northbound on Poplar and then come back southbound on Poplar and run across the curb there at Poplar and Kirby.”Officer Dyer described as he then went up to the vehicle:-2- As I approache d the vehicle I observed a strong odor of alcohol, or intoxicant commonly associated as alcohol c oming from the driver’s side window. Uponspeaking to the driver, he identified himself as Mr. Harold Turner and I observed his eye s to be red, blood shotand watery , and also, th e v er y strong odor of alcohol coming from his person. Officer Dyer sa id that the defendant, who was driving the vehicle, needed support as he got out and nearly f

ell before the officer

grabbed him. The defendant sat in the rear of Officer Dy

er’s vehicle until the D UI va

n arrive d. Metro D UI O fficer Bruce Bicker staff at

te mpted to administer field sobriety tests to the defenda nt, as Officer Dyer observed. Dy er testif ied that th e defendant did “very poorly.” We have r

ev ie wed the videotape of the defendant’s attempts to stand on one foot while counting and walk heel-to -toe, an d it suppor ts this assessment. Dyer

described the defendant as be in g “ ve ry thick -tongu ed and confused,” and said that, in his opinion, the defendant was ve ry intoxicated. Officer Bruce Bickerstaff, a

Memphis police officer assigned to the Metro DUI Squad , testified as the State’s next witness. He said that he asked the defendant six times if he

wanted to submit to a brea thalyzer test. The def

endant “ refuse d to coope

rate an d refuse d to answer” whether he would take the test, so Bickerstaff concluded that the defendant refused to do so. I n his opinion, the de fe nd an t w as “h ig hl y im pa ir ed .” Du ri ng hi s t es ti mo ny, th e v id eo ta pe wa s p la yed fo r t he ju ry. The State rested, following the testimony of Officer Bickerstaff

; and the defense then rested without presenting proof. ANALYSIS The defenda

nt has pre sented, a s the sing le issue o n appea l, that his r

ight to du e proce ss was violated by t

he trial c ourt’s ins tructing sequenti ally

as to DUI

and driving while impaired, with the jury not to consider

the lesse r offen se unlessit first determined that the defendant was not guilty of DUI. According to the

defenda nt’s arg ument, “s uch a pri oritization was not expressly

in the statute.” In analy zing this issue, we

note firs t that, in

an opinion released approximately two months after the trial of

this matter, this court determined that the offense of adult driving w hile impaired is not a le ss er- in clu ded off ens e of DUI: We conclude that proof that theoffender is “twenty -one yea rs (21) of age or older” is not “a

less serious harm or risk of harm to thesame person, proper ty o

r public in

terest” or “a dif

fering mental sta

te indicating a

lesser kind of

culpability” under pa

rt (b) of the Burns test. Id. Accordingly , we hold that the offense of adu lt d riving w hile impaired is not a lesser-included of fen se of driving under the influence under

the test pronounced in Burns

. See Burns , 6 S.W.3d-3- [453], 466-467 [Tenn. 1999]. Therefore, the trial court did not err by refusing to instruct the jury as to the offe nse of a dult drivin g while impaired . This issue

is without me

rit. State v. H um ph re ys , 70 S.W.3d 752, 764 (Tenn. Crim. App.) (footnote omitted), perm. to appea l denied(Tenn. 2001). Ac co rd in gl y, the defe

ndant w as not entitled to have the jury instruc ted as to adult driving while impaired because it is not a lesser-included offense of DUI . However, the jury was instructed as t o driv ing while impaired at the request of the defendant, af ter counsel had reviewed the trial court’s intended instructions and saw that the jury was not going to be instr

ucted asto this offense. The State objected to the jurors’ being instructed as to adult driving while impaired. Since t h e jury

was instr ucted, a t the def endant’ s reques t, as to an offense which wa s not a lesser-included

offense of the indicted offens e, it is axiom atic that the trial court did

not err in instructing that the jury must first determine that the defenda

nt was not g

uilty of the ind icted of fense before considering thesecond. However, even if adult driving while impaired w ere a lesser-included offense of DUI, the trial court would not have erred in its instructions. It is settled law that a jury is instructed to consider, in sequential fashion, first the indicted offense and then the lesser-included offense s: The appellant next contends that the trial court erred in giving sequential instructions on first degree murder, second de gree murder, and voluntar

y ma nslaugh ter. We dis agree . This court has repe atedly upheld “acquit tal-fir st” instructi ons. See State v. Raines , 882 S.W.2d 376, 381 -8 2 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994); State v. McPherson , 882 S.W.2d 365, 375 (Tenn. Crim. App.), per m. to appeal denied , (Tenn. 1994); State v. Rutherford , 87 6 S.W.2d 118, 119-20 (Tenn. Crim. App. 1993), perm. to appeal deni ed , (Tenn. 1994); Sta

te v. Beckham , No. 02C01-9406-CR-00107, 1996 WL 389321 (Tenn. Crim. App., at Jackson, Sept. 27, 1995). Accord ingly , this issue

is without me

rit. State v. Mann , 959 S.W.2d 503, 521 (Tenn. 1997). Thus, we c onclude t

hat this iss ue is without merit.

CONCLUSION Based upon the foregoing authorities and re asoni n g, the ju dgment o f the tria l court is affirmed.

___________________________________ ALAN E. GL

ENN, JUDGE