# FILED
July 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS

AT KNOXVILLE APRIL 1997 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9604-CC -00171 Appellee, ) ) SULLIV

AN CO UNTY vs. ) ) HON. R. JER RY BECK , JUDGE RICKY DE AN COLE, ) ) (DUI, Poss ession of Mari juana and Appellant. ) Drug Para phernalia)

FOR THE APPELLANT : FOR THE APPELLEE : STEPHEN WA LLA CE (trial and appeal) JOHN KNOX WALKUP Distric t Public Defender Attorney Gen eral and Repor ter P. O. Box 839 Blountvil le, TN 37517 SARA H M. BRA NCH Assistant Att orney Gener al RAND ALL E . R EAG AN (a pp ea l o nl y) 450 James Roberts on Parkway 602 Gay Stre et, Suite 905 Nashvil le, TN 37243-0493 Knoxvil le, TN 37209 H. GREELEY WELLS, JR. Distric t Attorney General PHYLLIS H . MILLER Assistant D istrict A

ttorney Gener

al P. O. Box 526 Blountvil le, TN 37617-0526

OPINI ON FI LED:

AF FIRMED
JOE G. RI LEY, JUDGE

O P I N I O N1 Metro. Governmen t of Nashv

ille & Da vidson Coun

ty v. Martin , 584 S.W.2d 643, 646 (Tenn.1979). Defendant had purchased five (5)half gallons of vodka “to start with” and when 2 Defendant, Ricky Dean Cole, was convict ed by j ury verdict of the offenses of driving under the influenc e of an intoxic ant, fourth offense; simple possession of marijuana; and possession of drug parap hernalia. He was sentenc ed to eleven (11) months and twenty -nine (29) day s foreach of the three offenses w ith two of the sentences running co ncurrently and the other consecutiv ely. Defendant raises the following issues in his appeal:

(1) whether the evidence was sufficient to sustain the convictions; (2) whether prejudicial error resulted when a toxicology request form containi ng a reference t o prior conv ictions was passed to the jur

y; and (3) whether the trial court erred in imposing consecutive sentences. We AFFIRM the judgment of the trial cour t.

FACTS A. State’s Proof Defendant resided in a room at the Model City Motel i n Kingsport . On the evening of December 31, 1993, he had aNew Year’s Eve party and became heavily intoxicat ed. At approxi mately 10:00 p. m. the defendant w as observ ed entering a nd driving an automobile which hit another automobil e in the parki ng lot. Realizi ng that he had struck t he car of fellow occupants i n the motel, he went to their r oom and advised them t hat he had hit their vehicle. The police w ere summoned, much to t he chagrin of the defendant. Defendan t also ad vised other persons, inc luding a pol ice officer, that h e was responsible for

the accident. Since defendant’s girlfrie nd had already driven t he car away by the time the police ar rived, th e o fficer questioned the defendant ab out his girlfrie nd. The defendant stated he di d not know hi s girlfr iend’s name. By all ac counts, defendant w as, in the words of the late C hief Justice Joe

Henr y, “drunk - o penl y, vis ibly, noto riously , gloriou sly and upr oariously drunk.” 1 Heasked whether he drank “a bunch of that yourself,” de

fendant replied, “I

tried.”
2 According to the pre-sentence report, defendant weighed 16 0 pou nds, less than one-half his girlfriend’s weig ht.
3 None of t

he party -goers testified. In

explaining

their fa ilure to te stify , defendant testifie d that “every

body that he knowed” w as eithe r out-of -state or in jail.
4 At the time they were

dating, defendant did not know she was married.

3 failed all field sobriety tests, and his blood alcoho l level was tested to be .18%. Since t he inebriated defendant was barefooted an d shirtless on this “i cy cold”

New Y ea r’ s Eve night, the ar resting officer allowed him to put on some c lothes prior to being taken to the police st ation. A subsequent se arch of the defendant y ielded a bag o f marijuana
an d a small s et of scales in the defendant’s coat poc ket. The defendant had been seen wearing this jacket on prior occasions. B. Defense Proof Defendant testified in hi s defense. He admitted tobeing “heav ily int oxicated.” As was the c ustom when he g ot drunk, he and hi s girlfr iend got int o a fight sinc e “she don’t like me [dru nk].” The defendant desc ribed his g irlfriend as “six o ne” weig hing “three, twenty -five,” w hich was “a bunch” more than defendant weig hed. 2 This wasno ordinary fight

but a “ bad one, knock down , drag out” i n whi ch “[s ]he li ked to beat me to death, blackened bot h of my eyes .” Ac cordi ng to the defen dant, “ [my girlfri end] run to her car and j umped in” the 1973 O mni locking the doors. Ov ermatched yet undaunted, the fea rless , fie ry, forceful defendant gave chase to his fleeing gi rlfriend, much to the amazement an d amusement of his fellow party-goers in attendance at this “major wild party.” 3 It was at this point, according to the defendant’s tes timony, that his girlfrie nd ende avore d to d rive awa y i n g reat haste and bac ked into the other automobile. Defendant denied driv ing the automobi le. The defendant further denied telling anyone that hehad driven the automobile. He admitted telli ng the officer that he did not k now his g irlfriend’s name. Howev

er, he testified that she had three (3) names, and h e did not know which was her true name. While they were dati ng, she used a different name than wh en they w ere liv ing together. 4 As to the coat, the def endant explained that the party-goers had piled their coats in the room, and he simply g rabbed one ofthem. This w as not his coat , and he4

was unaware that the coat contained the mar ijuana and scal es. The on ly other defense witness was defendan t’s mother who testified in surrebuttal. She testified that the jacket w orn by defendant

upon release from the jail did not fit him and w

as not the same jac ket she had purc hased for him earl ier.

C. Jury Verdict The jury convicted the defendant of drivin g under the i nfluence of an intox icant, simple possession of mar ijuana and possession of drug parapher nalia. The tri al then wentinto the second phase in whi ch the state int r o duced proof of three prior DUI convicti ons. The jury

then found defendant guil ty of DUI, four th offense. D. Suffi ciency

of the Ev idence In de term ining the s ufficiency of the ev idence, this C ourt does not reweigh o r re-evalu ate the eviden ce. Stat e v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A juryverdict approved by the trial judge accredits the state’s witness es and resolves all conflicts in favor of the s tate. State v. Bi gbee , 8 8 5 S

. W. 2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appe al, the state is entitled to the strongest l egitimate v iew of the ev idence and all legitimate or reasonable inferences which may be draw n therefrom. Id . This Court will n ot disturb a verdict of gui lt due to the sufficiency of the evidence unl ess the defendant demonstr ates that the fac ts contained in th e rec ord a nd th e inf eren ces wh ich ma y be drawn therefrom are insufficient , as a matter o f law, for a r ational tri er of fact to find the acc used guilty beyond a reasonable doubt

. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Acc ordi ngl y, i t isthe a ppel latecour t’sduty to aff irm the convicti on if the evidence, view ed under these st andards, wa s sufficient for any rational trier of fact to have found the essential elements ofthe offense beyond a reasonable doubt. Tenn. R. Ap p. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317 , 99 S.Ct. 2781, 2789 61 L.Ed.2d 560 (1979); State v. Ca zes , 875 S.W .2d 253, 259 (Tenn . 1994). This case clearl y turned on the credibil ity of the witnes ses. The jury accredited the state’s proo f and rejected theversion given by the defendant. The evidence clearly supported the jury ’s guilt y ver dict of driv ing under theinfluence of an intoxic ant, simple possession of marijuana and pos session of drug paraphernalia

. This issue i s without5

merit.

TOXICOLOGY REQUEST
During the testimony

of the police officer , the “alcohol /toxicol ogy req uest” form
was marked for identif ication. The off icer read to the jury from thi s form. Under ty pe of offense, the officer simply stated “DU I.” In fact, the form read “DUI 6th.” During the testimony

of the forensic sc ientist w ho had tested defendant’s bl ood sample, the state requested th at the laborator y report be passed to the jury . Instead, the “alcoho l/toxicolo gyrequest” was inadvertently passed to the jury . This inadvertent
error was not di scovered un til the req uest form had been passe d to some of the jurors. Counsel then suggested to the court that this exhi bit had been marked for identification only and sh ould not be passed to the jury . The trial j udge was of the opinion it was a “full exhibit.” The judge further d etermin ed it was too late to do anything since the document had a lready been passed to the jury. At no time did counsel point outto the court or jury that the document contained t he words “ DUI 6th.” Furthermore, there was no menti on made by counse l, the court, nor any wi tness during the guilty phase of the trial as to any prior convictions. We first note that this issue w as not raised in the motion for new trial. Only the sufficiency of the evidence w as raised in the motion. Accordingl y, this i ssue is waived. Tenn. R. App. P. 3( e); State v. Seato n , 914 S.W .2d 129 (Tenn. Crim. App . 1995). We furt her conc lude , in lig ht of the fa ct s and circumstances, that this inadvertent

error was harmless. Tenn. R. App. P. 36(b ). The officer’s r eading from the form simply s tated that t he type o ffense was “DU I.” There was no mention made during the guilt phase of trial of any prior convictions. In light of the evidence against the defendant, defendant did not suffer any preju dice. This i ssue is w ithout merit.

CONSECUTIVE SENTENCING

Defendant was sentenc ed to eleven (11) months and twenty- nine (29) days on6

each of the three offenses w ith two (2) of the sentences r unning concurrentl y and one (1) running consecutively. Defendant conten ds there is no basi s for c onse cuti ve sentencing. Defendant had numerous convictions not on ly pr ior to commiss ion of the presentoffense, but also several conv ictions thereaf ter. He ha d alcohol and dr ug related offenses an d had numerous tra ffic offenses, including drivin g on a revoked license. He was on p robatio n at the time thi s offense was commit ted. Pursuant t o Tenn. Code Ann. § 40-35 -115(b)(2) , (4) and (6) th e tria l cou rt in i mpo sing c onse cuti ve senten ces fo und the followin g:

(1) the defendant had an extensive record of cri minal acti vity; (2) the defendant was a dangerous offender; and (3) the defendan t committed the presen t offense while on probation. This Court’s r

eview of the sentences imposed by the trial court is de novo with
a presumption of cor rectness. Tenn. Code Ann. § 40-35-401(d). Th e evidence clearly supports the trial j udge’s rati onale for con secutive senten cing. Furt hermore, the t erms imposed by the tri al judge are reasonably related to the severity

of the offenses and
are necessary to protect the public from further criminal acts by the off ender. Stat e v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). Although thetrial court did not make t he findings requi red b y Wilkerson , we find that these factors are present under our power of de novo review

. State v . Adams , 859 S.W .2d 359 (Tenn. Crim. App . 1993); State v. Edward Thompson , C.C.A. No. 03C01-9503-CR -00060, Cocke C ounty (Tenn. Crim. App. filed December 12, 1996, at Kn oxvi lle). Consecutive sentencing is appropriate. This issue is without mer it. For the above reasons the judgment o f the trial court is AFFIRMED.

JOE G. RILEY , JUDGE CONCUR:7

JERRY L. SMITH, JUDG E

CHRIS CR AFT, SPECIAL JU DGE