IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. EDWARD L. KELLY

Direct Appeal from the Criminal Court for Davidson County

No. 98-T-541 Seth Norman, Judge

No. M1999-01091-CCA-R3-CD - Decided June 9, 2000

The evidence was sufficient to establish the guilt of the defendant, Edward L. Kelly, of driving under

the influence of an intoxicant. Because there was proof that his blood alcohol content was over .20%

and that he was in physical control of his vehicle on a public street, the conviction is affirmed. A

15-day jail sentence is not excessive in light of the defendant's prior DUI offense, even though it

occurred l5 years prior to the current offense. 

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

WADE, P.J., delivered the opinion of the court, in which WILLIAMS and WEDEMEYER, JJ., joined.

Richard D. Piliponis, Mt. Juliet, Tennessee, for the appellant, Edward L. Kelly.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General,

and Ed Ryan and Colin Carnahan, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

The defendant, Edward L. Kelly, was convicted of driving under the influence of an

intoxicant, first offense. The trial court imposed a sentence of eleven months and twenty-nine days

at 75% release eligibility and suspended all but 15 days. The defendant was fined $350.00, ordered

to attend alcohol safety school, and prohibited from driving for one year. In this appeal of right, the

defendant challenges the sufficiency of the evidence and, in the alternative, argues that the sentence

was excessive. The judgment of the trial court is affirmed.

While on patrol at approximately 2:20 A.M. on October 22, 1997, Metropolitan

Nashville Police Officer Steven Coleman observed a 1978 blue Ford Pinto in the front yard of a

residence located at the corner of Lorraine Avenue and Brunswick Drive. There were deviation

marks on Brunswick Drive and a mailbox had been knocked down into a private driveway. Upon

inspection of the vehicle, Officer Coleman discovered that the engine was still running and that the

defendant was stepping out of the driver's side. When asked what had happened, the defendant
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acknowledged that he had been driving. He explained that he and his wife had been in "an

altercation, an argument" and that he had just left the Four Aces Bar. 

Officer Coleman described the defendant as appearing unkempt, smelling of alcohol,

and having bloodshot eyes and slightly slurred speech. It was his opinion that the defendant failed

two field sobriety tests: the walk and turn and the one-legged stand. During the latter examination,

the defendant said, "I can't go on, I'm drunk." After his arrest, the defendant submitted to a

breathalyser test. His blood alcohol content was .208%.

Deloris Frazier, a bartender at the Four Aces Bar, testified for the defense. While she

could not recall the date of the defendant's arrest, she claimed that she had refused to serve the

defendant that night because he was already intoxicated when he arrived at the bar. Ms. Frazier

testified that she took his keys, gave them to a woman she initially identified only as "Sherry," and

asked her to drive him home. Ms. Frazier recalled that "Sherry" and the defendant left the bar at

2:00 A.M. On cross-examination, Ms. Frazier referred to "Sherry" as either "Sherry, Sherrell, or

Sharon, her name starts with an S" Wright. She also stated that they left the bar at 4:00 A.M. Ms.

Frazier claimed that she saw "Sherry" two days later and learned of the defendant's arrest. She

contended that "Sherry" admitted driving the defendant's vehicle at the time of the wreck and that

"Sherry" said that afterwards she "took off" and was not arrested.

Carlos Williams, a resident of Brunswick Drive, also testified for the defense. He

stated that he was asleep on the night in question and was awakened by the sounds of a car accident.

Williams recalled seeing the Pinto and seeing a short, blond woman, "jump out of the car" and walk

away from the driver's side. He stated that because of darkness, he did not see the defendant until

he walked outside of his residence.

Peggy Gillian also claimed to have seen a woman walking through the yard where

the vehicle came to rest. She stated that when she went outside a minute or so later, she saw the

defendant talking to the officer. Ms. Gillian conceded that she did not know who was driving the

Ford Pinto. 

The defendant testified that he was drinking on the night of his arrest to "drown his

sorrows about his marital difficulties." He did not recall driving to the bar, did not remember

"Sherry," and had no recollection of her driving his vehicle. The defendant said that otherwise he

could not remember the course of events and acknowledged that he could have been driving. He

stated that he later learned from Ms. Frazier that "Sherrell" had admitted that she was driving at the

time of the accident. 

From this testimony, the defendant contends that the state was unable to prove that

he was the driver of the vehicle when the accident occurred or, in fact, that he had driven the vehicle

on a public road. The state asserts the jury heard ample evidence that the defendant was in physical

control of the vehicle on a street or alley. 

When a defendant challenges the sufficiency of the evidence, the appellate court must
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determine whether the evidence at trial is sufficient "to support the findings by the trier of fact

beyond a reasonable doubt." Tenn. R. App. P. 13(e). The court does not "reweigh or reevaluate the

evidence" when making a sufficiency determination. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). The reviewing court is "required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate inferences

which may be drawn from the evidence." Id. 

Once approved by the trial court, a jury verdict accredits the witnesses presented by

the state and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). The credibility of the witnesses, the weight given to their testimony, and the

reconciliation of conflicts in the proof are matters entrusted exclusively to the jury as the trier of fact.

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). A jury's guilty verdict removes the

presumption of innocence enjoyed by the defendant at trial and raises the presumption of guilt. State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant bears the burden of overcoming this

presumption of guilt on appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).

Tennessee Code Annotated Section 55-10-401(a) provides as follows:

It is unlawful for any person to drive or to be in physical control of

any automobile or other motor vehicle driven on any of the public

roads and highways of the state, or on any streets or alleys, or while

on the premises of any shopping center, trailer park or any apartment

complex, or any other premises which is generally frequented by the

public at large, while:

(1) Under the influence of an intoxicant, marijuana, narcotic drug, or

drug producing stimulating effects on the central nervous system; or

(2) The alcohol concentration in such person's blood or breath is tenhundredths of one percent (.10%) or more.

Here, the officer saw the defendant behind the steering wheel of the car. The engine

was in operation. No one else was present. The defendant admitted that he had been driving. The

seat of the defendant's compact car was adjusted "all the way back" allowing Officer Coleman, who

was over six feet, to sit comfortably behind the steering wheel. The implication, of course, was that

the defendant, rather than a "short blond," had been in control of the vehicle just before the arrival

of the police and had been driving on a public street just before the accident. Officer Coleman

described the defendant as being "as tall or taller than myself." The jury, as was its privilege,

declined to accredit the testimony that "Sherry" was driving when the accident occurred and had

successfully escaped from the scene before the officer's arrival. 

One may be in physical control if he places himself behind the steering wheel of a

stationary vehicle and the engine is in operation and the headlights are on. State v. Turner, 953

S.W.2d 213, 216 (Tenn. Crim. App. 1996). The totality of the circumstances test is utilized to
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determine whether a defendant is in physical control. State v. Lawrence, 849 S.W.2d 761, 763

(Tenn. 1993). The extent to which the vehicle may be operated, whether the engine or the lights are

turned on, the location of the ignition key, and the proximity of the defendant to the steering wheel

are all appropriate considerations. Id. 

Here, there was sufficient evidence of physical control. Moreover, to the extent the

testimony of the defense contradicted that of the state, the jury accredited that offered by the state.

 Even in light of contradicting circumstantial evidence from seemingly independent witnesses, that

was the jury's prerogative. There was an abundance of circumstantial evidence indicating that the

defendant had control over the vehicle. Further, he admitted to the officer that he had been driving

at the time of the accident. In our view, the evidence was sufficient to support the conviction. 

Next, the defendant asserts that the 15-day sentence was excessive. He argues that

he should not be required to serve more than 48 hours, the minimum possible. The defendant also

asserts that the trial court may have inappropriately considered legislation passed after this offense

which establishes a seven-day minimum sentence when the offender's blood alcohol content is .20%

or more. See Tenn. Code Ann. § 55-10-403(a)(1). 

In misdemeanor sentencing, trial courts are required to provide the defendant with

a reasonable opportunity to be heard as to the length and manner of the sentence. The sentence must

be specific and consistent with the purposes of the Criminal Sentencing Reform Act of 1989. Tenn.

Code Ann. § 40-35-302(a), (b). A percentage of not greater than seventy-five percent of the sentence

should be fixed for service by a misdemeanor offender; however, a DUI offender may be required

to serve the full one hundred percent of his sentence. Tenn. Code Ann. § 40-35-302(d); Palmer v.

State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the percentage of the sentence to be

served, the court must consider enhancement and mitigating factors as well as the legislative

purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-302(d). 

Upon service of the percentage ordered, the administrative agency governing the

rehabilitative programs determines which among the lawful programs available is appropriate. The

trial court retains the authority to place the defendant on probation either immediately or after a term

of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The legislature has

encouraged courts to consider public or private agencies for probation supervision prior to directing

supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory

scheme is designed to provide the trial court with continuing jurisdiction in the misdemeanor case

and a wide latitude of flexibility. The misdemeanant, unlike the felon, is not entitled to the

presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.

1994).

Initially, the trial court's inquiry about the recent amendment which changed the

minimum sentence, taken in context, appeared to have had no bearing on the sentence imposed,

including the length of the jail term the trial judge assessed. After observing that the defendant had

"the worst case of denial I have ever heard," and that the defendant had a "bad history of drinking,"

the trial judge ordered the jail sentence and an alcohol safety program. The defendant, who was also
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convicted of DUI in 1987, admitted he had "no recollection of that night." While he had a good

work record and supports his family, the prior criminal offense and the excessive level of

intoxication would, in our opinion, warrant the sentence imposed. See generally Tenn. Code Ann.

§ 40-35-114.

Accordingly, the judgment is affirmed.