# FILED
January 29, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9711-CC-00551 Appellee, ) ) Williamson County V. ) ) Honorable Henry Denmark Bell, Judge ) DONALD W. STE PHENS, ) (DUI, 5th Offense) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: John H. Henderson John Knox Walkup District Public Defender Attorney General & Repor ter Eugene J. Honea Georgia Blythe Felner Assistant Public Defender Counsel for the State Twenty-first Judici al District Cordell Hull Buildi ng, Second Floor 407-C Main Street 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493 Joseph D. Baugh District Attorney General Lee Dryer Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED: _________________________

_________ AFFIRMED L. T. LAFFERTY, Senior Judge1 It should be noted, however, that the appellant also made other statements from

which it is app are nt that he was confused and unaw are of what was happening . For example, although the officers did not stop the appellant or activate their emergency lights, the appellant asked the officers why they had stopped him and stated th at he had pulled over as soon as he saw the blue lights. -2- 

### O P I N I O N

The appellant, Donald W. Stephens, appeals hi s convi ction for driving under the influen ce. See Tenn. Code Ann. § 55-10-401. The sole i ssue for our review is whether the ev id en ce

at tr ia l w as su ffi ci en t f or

th e j ur y t o f in d g ui lt

beyo nd a r

ea so na bl e d ou bt . We find that it was and AFFIR M the judgment of the trial c ourt.

Police Officers Brian Myatt and Chris Ivey noticed the appellant’s truck parked in the edge of a parking lot next to Highway 96 in F airview, Tennessee. The appellant was in the driver’s seat , slumped o ver the steering w heel, and appeared to be unconscious . The engine of the truck was running , and the lights were on. After repeate d attempts, the officers successfully roused the appellant to check his w elfare. The appellant

opened the door of his truck and stumbled from the v ehicle. He was aw

kward and disorientated,and he smelled of alcohol. When questione d, he admitted to having consumed seven beers; however, Officer Ivey testified that he appeared to have had “much m ore.” The of ficers administered two field sobri ety tests, neither of which the appellant was able to perform properly. The appellant refused to submit to a third test and admitted that he was drunk. Based on the above circu mstan ces, the officers arrested the appe llant on suspicion of driving under the influence of alcohol in violati on of Tenn. Code Ann. § 55-10-401.

At the time ofhis arrest, the appellant admitted that he had dr iven his truck from Dickson, Tennessee. 1 He said hebecame tired and pulled over to rest. At trial, however, the defense denied that the appellant ha d driven the truck. Ra ther, the a ppellant’s girlfriend, Shirley Ann Wright, testified that she had driv en the appellant to the parking lot. She said that the appella nt had calle d her from a bar and asked her to pi ck him up because he was too drunk to dri ve. Ms. Wright testified that she s tarted drivinghim home-3-

but, because he bec ame belligerent , she stopped in the parking lo t where the officers found the truck and called her daug hter to come and get her.

On cross-examination, the state asked Ms. W right to sketch the specific location within the parking lot where she left the appellant and his tr uck. Ms. Wright

also stated that the appellant had slid across the seat of his truck and was asleep behind the steering wheel when she left.
The appellantargues that this evidence was i nsufficient for the jury to hav e found the elements of the offense beyond a reasonable d oubt. More specifically, he arg ues that the proof did not conform to the indictment.That is, he does not argue that the proof was insufficientas to the statutory elements of driving under the influence but, rather, that the proof was insufficient to prov e the indictment, which v aried from the statutory lan guage.

The appellant was convi cted under Tenn. CodeAnn. § 55-10-401, which pr ovides that “[i]t is unlawful for any person to drive orbe in physical control of any . . . motor drive n vehicle on any . . . premises which is generally frequented by the public at large, while

.

. . under the influ ence of a ny intoxicant.” ( emphasis added). In contrast, the indictment charged t hat the appellant “unlawfully did drive and physically contr ol a motor vehicle . .

. while on . . . premises which is frequented by the public at large, at a time when the said Defendant was . . . under the influenc e of an intoxicant, . . . i n violation of Tenn es see Code Annotated 55-10-401.” (emphasis adde d).

Because the indictment used conjunctive lang uage, the appellant asserts that the state wa s required to prove both physical control a nd that the appellant drove. He t he n argues that the evidence was i nsufficient for the jury to conclude beyond a reasonable doubt that he dro ve the truck. We do not agree on either point . We conclude that the variance in the indictment was nei ther material nor prejudi cial; and, even if it w ere, the evidence was sufficient to prove the indictment as w ritten.-4- We “approach attacks upon indictments . . . from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.” State v. Hill , 954 S.W.2d 725, 728 (Tenn. 1997). “A variance is n ot f atal unless it is both mater ial and prejudicial. A variance is not material unless it either dep rives the accused of the protection against double jeopardy or misleads the accused at trial.” State v. Jones , 953 S.W.2d 695, 700 (Tenn . Crim. App. 1996) (citin g State v. Moss , 662 S.W.2d 590, 592 (Tenn. 1984)).

[A] varia nce . . . [does] n ot prej udice th e defe ndant’s rights if the indictment sufficiently infor med the defendant of the chargesa ga inst him so that he could properly prepare his defense an d . . . the variance was not such that it would presenta d an ger that the defendant could be pros ecuted a second time for the same offense. State v. Harper , 735 S.W.2d 360, 368 (Tenn. Crim. App. 1987) (citing Moss , 662 S.W.2d at 592).

In the present case, we find that the conj unctive wording of the indictment was neither material nor prejudicial. Even without refere nce to the applicable statute, the indictment

was more than sufficient to inform the appellant of the c harges aga inst him. By additionally citing thestatute that the appe llant w

as accus ed of vi olating , the ind ictment left
no reasonable question as to the charges that the appellant needed to defend. And, there is clearly no danger

of double jeopardy.

Even giving effect to the conjunctive language of the indictment, however, we find that the evidence was sufficient for the jury to find guilt beyond a reasonable doubt. When
an appellant challenges the s ufficiency of the evidence, thi s Court must determine whet her, afterviewing the ev

idence in a light most fav orable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee is enti tled to the strongest leg itimate view of the evidence and all reasonabl e inferences that may be draw n therefrom. See S tate v. Cabbage , 571 S .W.2d 832, 8 35 (Tenn. 1978). Moreover,a guilty verdi ct removes the-5-

presumption of innocence enjoyed by defendants at trial and replaces it with a presumption of guilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant bears the burden o f illustrating to this Court why the evi dence is insufficient to support the verdict. See State v. Freeman , 943 S.W.2d 25, 29 (T enn. Crim. App. 1996).

The appellant does not contest that he was under the influe nce of alco hol or tha t he was in control of the v ehicle. He was found behind the wheel with theengine running, and the def ense’s own witness testified that th e appellant was too drunk to drive. The only point of contention is whether the appellant actually drove his truck on the eveningof his arrest.

Officer Ivey testified that w

hen he encountered theappellant, thetruck was located “up next to th e road in the parking lot .” Ms. Wright later testified that she left the appellant’s truck in a different area of the parking lot. If, as they were entitled t

o do, the jurycredited the testimony of both witnesses, the inesc apable conclusion is that the truck
was moved. Given that the appellant was found in the driver’s seat with the engine running, the only reasonable ex planation for the movement of the truck is that the

appellant drove it. Thus, we find the circumstantial evidence, by itself, compellin g. See State v. Crawford , 470 S.W.2d 610, 612 (Tenn 1971) (Before one may be convicted of a criminal offense based upon circumstantial evi dence alone, the facts and circumst ances "must be
so strong and cogent as to ex clude every other

reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable d oubt.").

But, the jury need not have re lied on circumstantial eviden ce. The appellant admitted to the officers that he had driv en the truck from Dickson, Tenness ee. The officers’ testimo ny indicat ed that t he appel lant was no t coheren t; his adm ission ma y, there fore, have been entitled to less weight, but we do not reweigh the evid ence. The testimony

was sufficient to go to the jury. It was then for th e jury to det ermine, first, whether they believed the officers ’ account of the appellant’s admission and, second, if so, whether that admission re flected a true fact.-6- For the reasons above, we find the totality of this ev

idence more than sufficient for
a rational jury to hav

e found each element of the offense b ey ond a reasonable doubt, including that the appellant drove his truck.
The judgment of the trial court i s affirmed.

___ ________

__________________________ _ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

______________________________ JOE G. RILEY, JUDGE

(Not Participating) PAUL G. SUMMERS, JUD GE