### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. EDWA RD 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 drivingunder 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 no t excessive in ligh

t of the defendan

t's prior DUI offen se, even though it occurred l5 years prior to the current offense. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
W ADE , P.J., delivered the opinion of the court, in which WILLIAM S and W EDEMEYER , JJ., joined. Richard D. Piliponis, Mt. Juliet, Tennessee, for the appellant, Edward L. Kelly. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assista

nt Attorney Gener

al, and Ed Ryan and Colin Car nahan, Assistant D

istrict Attorneys G

eneral, for the

appell ee, 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 sa

fety 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 appro ximately 2:20 A.M. o

n October 22, 1997 , Metropoli ta n Nashville Police Officer S teven Co leman observed a 1978 blue Ford Pinto in the front yard of a residencelocated at the co rner of Lorraine Avenue and Brunswick Drive. There were deviation marks on Brunswick Drive and a mailbox had bee

n 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-2-

acknowledged

that he had been driving. He explai ned th at 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, th e d efendant 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 defe ndant that night because he was already intoxicated when he arrived at the bar. M s. Frazie r testified that she took his key s, gave them to a woman she initially identified only as "Sherry," and askedher to drive him home. Ms. Frazier recalled that "Sherry" and the defendant le

ft the bar at 2:00 A.M. On cross-exa

mination, Ms. Frazier referred to "Sherry" as either "Sherry, Sherrell, or Sharon, her name starts with an S" Wright. She also

stated that they le

ft the bar at 4:00 A.M. Ms. Frazi er claimed that she sa

w "Sherry" two days

later and learn

ed of the defend

ant's arrest. Sh

e 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 t he defense. He stated that he was asleep on the night in questionand 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 def

endant 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 r

est. She stated tha

t w he n she went outside a minute or so later, she saw the defendant talking to the offic

er. 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 "drow

n his sorrows about his marital difficulties." He di d not rec all 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 co uld 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 conte nds that the state

was unable to prove that he was the driver of

the vehicle

when the accide

nt occurred or,

in fact, that he ha

d driven the vehic

le on a public road. The state asserts the jury heard ample evidence t

hat the defenda

nt was in physical control of the vehicle on a street or alley.

When a defendant challenges the suff iciency of the evidence

, the appellate c

ourt must-3-

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 legi timate view of the evidence contained in t he recor d as well as all reasonable and legitimate inferences which may be draw

n from the evidenc

e." 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 cred ibility of the witnesses, the weight given to their testimony, and the reconciliation of conflicts in the proof are matters entruste

d exclusively to the

jury as the trier o

f fact. Statev. 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). Thedefendant bear s the burden of ove

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

Tennessee Code A

nnotated Section 5 5-10-401(a) pr ovides as follows:
It is unlawful for any person to drive or to be in ph ysical 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 influe

nce of an intoxica

nt, 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 pre sent. 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 p ublic street just before the accident. Officer Coleman described the defendant a

s being "as t

all or taller th

an myself." The jury, as was its privilege, declinedto accredit the te stimony 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 c ontro l if he places himself behind the steering wheel of a stationary vehicle and the engine i s in opera tion and the headlights are on. State v. Turner , 953 S.W.2d 213, 216 (Tenn. Crim. App. 1996). The totality o f the circumstances te st is utilized to-4-

dete rmine whether a defendant is in physical control. State v. Lawrence , 849 S.W.2d 7 61, 76 3 (Tenn. 1993). The exten

t to which the vehic

le may be operated, whether the engine or the lights are turnedon, 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 offen

se 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 sent

encing, trial cou

rts are re quired to provide t he defendant wit

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

The sentence mus

t 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 perc

ent of hissentence. 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 enh ancement an d 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 go verning the rehabilitative programs determ ines which among th

e lawful progra

ms 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 legislat ure ha s encouraged

courts to consider public or private agencies for probation supervision prior to directing supe rv ision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory scheme is designed to provi

de the trial cour

t with continuing jurisdiction in the m isdemeanor case and a wide latitude of

flexibility. The mis

demeanant, unlike

the felo n, 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, take

n in context, appe

ared to have had

no bearing on the s

entence imposed , including the length of the jail term the trial judge assessed. After observing that the defendant had "the worst case of de

nial I have ever heard," and that the defendant had a "bad history of drinking," the trial judge ordered thejail sentence an d an alcohol safe

ty program. The de

fendant, who was

also-5-

convictedof DUI in 1987, admitted he had "no recollection o f that night." While he had a good work record and supports his family, the prior criminal offens e 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.