# FILED
October 1, 199 6 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE AU GUST SESSION , 1996

STA TE OF TENN ESSEE , ) ) No. 03C01-9510- CC-00321 Appellee ) ) BLOUN T COUN TY vs. ) ) Hon. D. Ke lly Thom as, Jr., Ju dge JOHN RUSSEL L TURNER , ) ) (DUI) Appellant )
For the Appell ant : For the Appell ee : Mack Garner Charles W. Burson Distric t Public Defender Attorney Gen eral and Repor ter 318 Court Street Maryv ille, TN 37801 Michael J. Fahey, II Assistant Att orney Gener al Mary Ann Queen, Legal Assi stant Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493
Michael L. F lynn Distric t Attorney General Charles Car penter Asst. Dist rict Attor ney General Blount County Courthouse Maryv ille, TN 37801

OPINION FILE D: AFFIRMED

David G . Hayes Judge2 OPINION
The appellant, Joh n Russell Turner, appeals fro m his conviction by a jury for drivi ng under the i nfluence of an intox icant. The Cir cuit Court of Blount Coun ty sen tenc ed th e app ella nt to eleve n mo nths and t wenty- nine days incarcerati on in the county jail and sus pended all but five days. On appeal, the appellant contends

that the evi dence adduced at tr ial is ins ufficient to support a convicti on, because the Stat e failed to prove that he intended t o operate a vehicle.

After revie wing t he record, we affirm the judgment o f the trial cour t.

BACKGROUND Shortly after

midnight, on December 31, 1994, Officer Ruskey of the Maryville Police Department observed two individuals stagger across the public parking lot adjoining the “Coffee Shop,” an establishmen t which serves alcoholic beverages , and enter a vehicle. By the time the officer approached the vehicle, the lights were on and the engine was running. The vehicl e, however, remained stationary. The appellant was seated b ehind the steering wheel, and a fem ale occupied the pass enger seat. The appellant and his companion admitted t o Officer Ruskey that they had bee n drinking. The appellant fa iled to satisfactorily perform three field sobriety tests. An int oximeter test, subsequentl y administe red at the police station, reflected a breath alcohol level of .28 percent. Rus key testified that ther

e was no doubt

in his mind t hat the appellant was intox icated on the night in question and that the appellant ’s ability to operate a vehicle “was very impaired.”

At trial, t he appellant admitt ed that he was intoxic ated when he ent ered3

his vehic le. How ever, alt hough the appell ant conceded that he was seated behind the steeri ng wheel when the officer approached his vehicle an d that he had his car keys “out,” he denied starting the engine or turning on the car’s headlights. Moreover , the appellant de nied any int ent to drive his vehi cle from the parking lot. He ex plained that, ear lier that evening, he had called his nephew and had asked his nephew to dri ve him home, bec ause he knew that he was too intoxicated to drive. According to the appellant, he was simply awaiting his nephew’s ar rival w hen approached by Officer Ruskey . The appellant’s nephew also testified at trial and confirmed that he had been called by his uncle and asked to driv

e him home. After del iberating, the jury found the appellant g uilty of driving under the influenc e.

AN ALYSIS The appellant challen ges the sufficiency of the evidence supporting his convicti on for drivi ng under the i nfluence of an intox icant. Tenn. Code Ann. § 55-10-401(a) (1993) prov ides: “It i s unlawful for any person or persons to dr ive or to be in physical control of any automob ile ... on any ... premises which is generally

frequented by

the public at large, w hile under the influence of any intoxicant

... .” The appel lant concedes th at he was unde r the influence of an intoxicant

at the time of his arrest and that , technicall y, he was in phys ical contro l of his vehic le, whic h was located in a public parking l ot. Howev

er, despite the absence of any l anguage in t he drunk driv ing statute requiri ng a culpabl e mental state, the appell ant asserts t hat the crime of dr iving under the influence requires an intent to operate a vehicl e.
In support of his argument, the appe llant reli es upon Tenn. Code Ann. § 39-11-102(b)( 1991) and Tenn. Code An n. § 39-11-301( b) and (c) (1991). Tenn. Code Ann. § 39-11-102(b) provides tha t “[t]he provisions of parts 1-6 of this chapter apply

to offenses defined by ot her laws unless otherw ise provi ded by4

law.” Tenn. Code Ann. § 39-11-301 provides: (b) A culpabl e mental state is required within t his title un less the definition of an offense plain ly dispens es with a mental element. (b) If the definiti on of an offense ... does not pl ainly di spense wit h a mental element, int ent, knowl edge, or rec klessness s uffices to establishes t he culpable mental state.

“The provis ions of [the cri minal code] shal l be construed according to the fair import of thei r terms, inc luding reference to judici al decisions and common law inter pretations, to promote justic e, and effect the objecti ves of the cr iminal code.” Tenn. Code Ann. § 39-11-104 ( 1991). In deter mining the appl ication of Tenn. Code Ann. § 3 9-11-102(b) and 39-11-301 (b) and (c) to the driving while intoxicated statute, we note that this cou rt has previously observed that there is no culpable mental state requi red for guil t of drivin g under the i nfluence. Stat e v. Fiorito , No. 03C01-940 1-CR-00032 (Tenn. Crim. App. at Knoxvi lle, November 27, 1995). See also State v. M abe , No. 0 3C01- 9402-C R-000 51 (Tenn . Cri m. App. at Knoxv ille, Octobe r 25, 1994)(“ we doubt that the offense [of drivi ng under the influence] req uires as an el ement that the defendant have the specific i ntent to drive the vehicl e, in addition to having physical control”) . Indeed, consi dering our supreme cour

t’s decisi on in State v. Lawrence , 849 S.W.2d 761 (Tenn. 1993), the definitio n of the off ense of driving under the influen ce “plainly dispenses with a mental elemen t.” See Tenn. Code Ann. § 39- 11-301. In Lawrence , our supreme court, in cons truing the meaning of “physical contr ol,” remarked: It is our opinion that the Legislature, in ma king it a crime to be in physical control of an automobi le whil e under the influenc e of an intoxicant , “intended to en able the drunken driver to be apprehended before he st rikes.” We agree with the obser vation that “[a] motor vehicle i s recogni zed in the l aw as a dang erous instrumentali ty when in the control of a sober person; in the control of a drunk, the dang erous instr umentality be comes lethal. Therefore ... the court [should interpret] the drunk d riving statute in a way t hat [keeps] drunk s from behind the st eering w heels of motor vehicles , eve n wh en th e dr unk n eed[ s] t o ‘s leepit o ff .’” Lawrence , 849 S.W.2d at 765 (emphasis added). Contrast Stat e v. Lo ve , 8975

S.W.2d P.2d 626, 628-630 (Ariz . 1995). In other words, i n enacting thedrivin g while i ntoxicated statute, the leg islature des ired not only to prohibit the operation of a vehicle b y an intox icated indiv idual, but als o to remove from t he inebriated the o ptio n of operating a v ehicle. Accordingly , the supreme cour t quoted w ith approval th e following language: “We believe that an intox icated person s eated behind the ste ering wheel of a motor

vehicle is a threat t o the safety and welfare of the public. The danger is less than where an intoxicated perso n is actually driving a vehicl e, but it does ex ist. The defendant w hen arreste d may have b een exerc ising no conscious v iolation with respect to the vehicle, still there is a leg itimate inference to be drawn that he placed himsel f behind the wheel of the vehicl e and could have at any time started the auto mobile and driven away.” Id . at 765 n.2 (citin g Hughes v . State , 535 P.2d 1023, 1024 ( Okla. 1975))(emphasi s added).
Thus, by defining the of fense of driving under the inf luence to encompass the mere physi cal control of a vehicle, the legis lature clear ly sig naled its int ention to create a cr ime imposing strict li ability. It is for the legislat ure to determine whether the public injury threatened by those driving under the influ ence is so great as to justify impos ition of stri ct liabili ty. W hile the general rule at common law was that the scienter was a necessary

element in the i ndictment and proof of every cri me, and this was followed in regard to statutory crimes even where the statutory definition did not in terms inc lude it, there has been a modification of this view in respect to prosecutions

under statutes the purpose of w hich woul d be obstructed b y such a requirement. It is a question of legis lative i ntent to be constr ued by the cour t. It has been objected tha t punishment of a person for an act in violatio n of law w hen ignorant of the facts making i t so, is an absence of due proces s of law. Bu t ... the State may in the maintenance of a public policy provide “that he who s hall do them shall do them at his peril and will not be heard to plea d in defense good faith or i gnorance.” United States v . Balint , 258 U.S. 250, 251 -252, 42 S.Ct. 301, 302 (1922)(citations omitted).

We note that, in order to ill ustrate his a rgument, the appel lant in his brief poses sever

al hypotheti cal situati ons, includi ng the scenar io in whi ch an1 An objective of the criminal code is to “give fair warning of what conduct

is prohibit ed, and guide th e exercis e of official discretion in law enforcement, by defining the act

and the culpable mental state w hich together constitute an offense. ” Tenn. Code Ann. § 39-11 -101(2) (1991). Although the driving while intoxicat ed statute elimi nates the necessi ty for a cul pable mental state, the statute does not el iminate the neces sity for s ome “act.” Tenn. Code Ann. § 55- 10-401(a); Tenn. Code Ann. § 39-11-102(b); Ten n. Code Ann. § 39-11-301 (b). 6 intoxicat ed and unconscious individ ual is carr ied to his car by his companions and left in the vehicle, res ulting in his subseque nt discove ry by a police officer. Howeve r, in gener

al, a minimum req uirement for cri minal liabil ity is the performance of a vol untary act. See Model Penal Code § 2.01 (1985 ). 1 A voluntary

act is a bodi ly movement performed consci ously as a result of effort or determination. Id . According ly, in or der to be subjec

t to criminal liabilit

y under Tenn. Code Ann. § 5 5-10-401(a), a defen dant would have to voluntarily place himself in physical contr ol of his vehi cle.
In this case, it is undisputed that th e appellant voluntarily placed himself in physical control of his

vehicle while under

the influence of an int oxicant. Therefore, we conclude that a r ational tri er of fact could have found the essential elements of the cri me beyond a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Ca zes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , U.S. , 115 S.Ct. 743 ( 1995); Tenn. R. Ap p. P. 13(e). See also State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S. Ct. 1368 (1993) ; State v . Williams , 657 S.W.2d 405, 410 (Tenn. 1983), cert. denied , 465 U.S. 1073, 104 S.Ct. 1 429 (1984).
The judgment of the tr ial court i s affirmed.

____________________________________7 DAVID G. HA YES, Judge

CONCUR:

_________________________________ JOE B. JON ES, Pres iding Jud ge

_________________________________ PAUL G. S UMMERS, Ju dge