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

Briefs A ugust 13, 2003
STATE OF TENN ESSEE v. DOYLE GILBE RT NEWSOM
Direct Appeal from the Circuit Court for Bedford County

No. 15024 Lee Russell, Judge

No. M2002-01696-CCA-R3-CD - F iled December 23, 2003

The defendant, Doy

le G ilbert Ne wsom, was

convicte d by

a Bedf ord County

jury of fifth o ffense driving under the influence of an intoxicant, driving on a revoked dr iver’s license, and violation of the implied consent law . He rec eived se ntences of six years a

t 60% incarceration

as a car eer D.U .I. offender, and 11 months, 29 days for driving on a re voked licens e. In this appeal the defe ndant claims that: (1) the evidence is insufficient to support the D.U.I. conviction because the testimony of an accomplice was not sufficiently c orroborated; (2) he was impro perly sentenc ed to 11 mon

ths, 29 days for dr

iving on a revoked license; and (3) the prior judg ments of conviction

are i nval id. We find no merit to any of these contentions. Therefore, the judgments of the trial court are affirmed.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Tr ial Court a re Affirm ed.

J ERRY L. S MITH , J., deliver ed the opi nion of the

court, in which G ARY R. W ADE , P.J. and D AV ID G. H AYES , J., joined.

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the a ppellant , Doy

le Gilbert N ewsom.
Paul G. Summers, Attorney Gene ral & Reporter; David H. Findley , Assistant Attorney General ; Mike McCown, District Attorney Ge neral; and Michael Randles, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION Factual Backgr

ound

At approximately 8:00 p.m. on June 8, 2001, a Tennessee State Troop er and emerg ency medical personnel responded to the scene of a sing le-vehi cle acc ident on Sim ms Spring s Road in Bedford County. The respo nd ers found the defendant ly ing injured next to the driver’s side of a truck that had c

rash ed into a lar ge tree stump when the driver had fa iled to negotiate a curve.-2-

Alth ough seriously

injured, the defe

ndant wa s conscio

us, and he re fused to provide a blood samp le for alcohol testing. The defenda nt also denied being intoxicated and being the driver of the truck. The state trooper smelled alcohol coming from the def endant’s person.

A Mr. Ronnie Campbell was also found at the ac cident scene . Mr. Campbell had injuries consistent with his body having

slid across asphalt. Campbell said he was the owner of the truck, and he admitted he had been drinking shortly before the crash, but he stated the defendant had been driving at the time of the crash.

After the defendant was released from the hospital, law enforcement authorities arrested the defendant for D.U. I. At

the time of

his arrest, the defe

ndant wa s found hid

ing in some trees behind his brother’s house.

At the trial, Mr. Campbell testified that he and the defendant had been drinking earlier in the afternoon of June 8, 2001. Campbell e ventuall y dr ove his truck to a

convenie nce stor e to buy gas. At that time, the defe

ndant ask ed to driv e Campbe ll’s tr uc k. Campbell acquiesced and gave the defendant the ignition keys. As

the defendant drove the pair down Simms Springs Road, the defendant attempte d to round a c

urve at t oo gre at a speed. This action threw Campbell against the passenger door, whi ch opene d, causin g Campbe ll to fall

out and slide across the asphalt. The truck crashed into a large treestump. Campbell found the injured defendant ly ing on the ground outside the driver’s door. Campbell admitted that both he and the defe ndant we re intoxica

ted at the time of the crash.

Dr. Rober t Westover

testifie d that he t

reated the defe ndant upon his arr

ival at the hospital. The defendant’s blood alcohol level at that time was .27.

Onbehalf of the defendant, Ms. Tracy Carmen testified

she had witnessed Campbell and the defendant leaving the convenience store whe re Campbell stated he and the de fendant had gone to purchas e gas. She stated that Campbell was driving the truck as he and the defendant left the store. Ms. Carmen stated that

upon hearing the sirens of the emergency vehicles responsing to the crash, she followed

the sound a

nd arriv ed at the

crash si te. Ther e she saw the defe ndant lying

on the passenger side of the truck along with his cigarettes and lighter. Sufficiency of

Corroboration of Accomplice Testimony

The defendant contends that there was insufficient evidence to corrobor ate the testimony of RonnieCampbell, and thus his conviction cannot stand as a matter of law. D.U.I. first, second and third of fe ns es ar e m is de me an or s p un is ha bl e b y a m ax im um se nt en ce of el ev en mo nt hs an d t we nt ynine days. Tenn. Code Ann. § 55-10-4 03(a)( 1); see also Tenn. Code Ann. § 39-11-110 (declaring offenses whosemaximum punishment is less than one year of imprisonment to be misdemeanors). The accompl ice cor

roborat ion rule d oes not ap ply in misdeme anors. Warden v. State , 381 S.W.2d 247, 248 (Ten

n. 1964); Truss v. Sta

te , 81 Tenn. 311 (1884); Palmer v. State , 475 S.W.2d 189, 194 (Tenn. Crim. App. 1971). However, the legisla ture has declar ed a four thor subsequent conviction-3-

for D.U. I. to

be a Class

E felony which ca uses a ma ximum penalt

y of six (6) y ears impr isonment. Tenn. Code Ann. §§ 55-10-403(a)(1), 40-35-111(b )(5); St ate v. Sam uel L ee Parti

n , No. E2002- 00094-CCA-R3-CD, 2002 WL 31528552, at *2 (Tenn. Crim. App. at Knoxville, Nov. 15, 2002); State v. Ronnie Lamar Evans , No. E2000 -00327-C CA-R9-CO, 2001 WL 501414, a t *3 (Tenn . Crim. App. at Knoxville , May

11, 2001) . Beca

use the in stant c ase involves a fifth offense D.U.I . the accompl ice cor

roborat ion rule a pplies.

As our supreme court has recently reiterated, “[i]n Tennessee, a conviction may not be based solely upon the uncorroborated testimony of an accomplice.” State v. Shaw , 37 S.W.3d 900, 903 (Tenn. 2001). “An accomplice is one who knowingly, voluntar ily, and with common intent unites with the princ ipal offender in the commission of a crime.” State v. Allen , 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997). The general test is whether the acc omplic e could be indicted for the offense charged a

gainst the defendant. See id. To corroborate the testimony of an accomplice: [T]here must be some fac t testifi ed to, entirely indepe ndent of the accomplice’s te st im on y, which, taken by itself, le a ds to the inf erence, not only

that a crime has been committed, but also that the defendant is implicated in it; and th

is independent corroborative testimony must also include some fact establishing the defendant’s id en ti ty. This corroborative evidence may be direct or entirel y circumstantial, and it need not b e adequate, in a nd of itse lf, to supp ort a con viction; it is suffic ient to meet the requirements of the rule if it fairly and legitimately

tends to connect the defendant with the commission of the crime charged. It is not nece ssary that the corroboration

extend to every par

t of the accomplice’s evidence. The corroboration need notbe conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, altho ugh the evidence is slight and entitled, when standing alone, to but little consideration.

State v. Gaylor , 862 S.W.2d 546, 552 (Tenn . Cri m. App . 1992 ) (quo ting Hawkins v . State , 4 Tenn. Crim. App. 121, 133-34, 4 69 S.W.2d 515 , 520 (197 1)). “O nly slight c ircumsta

nces ar e requir ed to corroboratean accomplice’s testimony .” State v. G riffis , 964 S.W.2d 5 77, 589 (T enn. Crim. App. 1997).

As noted

by t he State in its brief, there were two questions for the jury in this case: (1) was the defenda

nt intoxicat

ed; and ( 2) was the

defenda nt driving . As to the forme r, Ronnie Campbell’s testimony was corroborated by

Dr. Robert Westover, who testified that the defe ndant’s bloo d alcohol was .27 up on his admi

ttance to the hospit

al follow ing the a ccident

. As to the latt

er, Campb ell’s tes timo n y that the de fendant was drivi

ng and t hat he wa s a passenger and fell out of the car just prior to the accident was corroborated by Trooper Blackwell’s test imony that the only injury

suffered by

Campbell was “road rash” on his back and shoulder s , which he testified occurs when someone “slides acr oss an asphalt roadway .”-4-

Ad di ti on al ly, both Trooper Blackwell and EMT Captain Bria n Bruce testified that the defendant was found on the ground just outside the driver’ s side door.

Fi na ll y, both Trooper Blackwell and Deputy Williams testified that when they went to the residence of the defendant’s brother, looking for the defendant, he wa s found hiding in the woods behind the house. Guilt can be inferred from a def endant’s flight. See, e .g. , State v. Kendricks , 947 S.W.2d 875, 886 ( Tenn. Cri m. App. 1996) (inferring guilt from def endant’s flight, in combination with the other facts a nd circu mstance s in

the case ); State v. Larry

Hughes , No. 55, 1990 WL 113803, at *2 (Tenn . Crim. App. at Knoxville Aug. 10, 1990) (holdingthat defendant’s flight into backy ard of his home after officers approache d, such could be considered for purposes of cor roborating accomplice testimony). There was suffi cient corroboration to support Mr. Campbell’s testimony and the judgment of the trial court is affirmed.

Th e D ef en da nt ’s El ev en Mo nt h, Tw en ty- Ni ne Da y Sentence for Driv ing on a Revoked L

icense

The defenda

nt compla

ins on a ppeal that he should have received a maximum sentence of only six months for his conviction for driving on a revoked license. A six-month maximum sentence is available only for

first offenders of

the law prohibiting driving on a revoked or suspende d license. Tenn. Code Ann. § 55-50-5 04(a)( 1). I n this case, the presentence report revea ls that in November 1997, the defendant was convicted of driving on a revoked license in Marshall County , Tennessee. Tennessee Code Annotated section 55-50-50 4(a)(2 ) provide s that a second or subsequent conviction for driving on a revoked lice

nse is a Class A misdemeanor. The maximum sent ence for a Class A misdemeanor

is gene rally eleven mo nths , twenty-nine day s, and a fine of not more than $2,500. Tenn. Code Ann. § 40-35-111(e)(1). I n view of the fact that the conviction for driving on a revoked licensei n this cas e is the de fendant ’s secon d, and in view of the

defenda nt’s extens ive crimi

na l record, a sentence of eleven months and twenty -nine days is amply

supported by the re cord. This issue lac ks merit. Validity of Prior D.U. I . Convictions

The defendant contends that his prior D.U.I. judgments ar e invalid ontheir face because he was not advised, at

the time those judgments were entered, that they could be used

to enhance any sentence he might

receive as a result of future D.U.I . convictions. See Tenn. Code Ann. § 55-10- 403(g) (1). Ac cordingly, he conte nds that he

should only

be sente nced for D.U.I ., first

offense.

The supreme court has held that “a facially valid, unreversed judgment in a cour t with jurisdiction over the subject matter and th e person cannot be collaterally attacked in a subsequent proceeding except

by the authorized routes of a ttack.” State v. McClintock , 732 S.W.2d 268, 271 (Tenn. 1987). Most recently, this Court reiter ated that holding in the ve ry context the petitioner brings now, finding that “‘[55-10-403(g)(1)] does not require that a defendant have received such notice prior tobeing sentenced on a second or subseque nt offense.’” State v. Posey , 99 S.W.3d 141,-5-

145 (Tenn . Cri m. App . 2002 ) (quo ting State v. George S. Mercier , No. 02C 01-9404-CC-00066, 1994 WL 568345, at *1 (Te

nn. Crim. App. at Jackson, Oct. 19, 1994)). This Court concluded in Posey that failure to adhere to 55-10-403(g) does not render prior judgments invalid. Po sey , 99 S.W.3d at 1 45. Because a challeng e in the most recent D.U.I. pr oceeding of the validity

of prior D.U.I

. convicti ons is inap

propria te we fin d this issue

to be witho

ut merit.

CONCLUSIO

N For the foregoing r

easons, we affirm the judgments of the trial cour t.

___________________________________ JERRY L. SMITH, JUDGE