### I N THE COURT OF C RI M I NA L APP EALS OF TE NN ES SE E AT J AC KS ON A s s i gne d on B r i e f

s N ove m be r 12, 2008

S T A T E O F T E N N E S S E E v . D A N I E L E A R L WI L L I A MS
Appeal f rom the Circ uit Court for Madison Cou nty No. 07-255 Donald H. Allen, Ju dge

No. W2008-00367-C CA-R 3-CD - Filed May 5, 2009

A Madison County

jury convicted the defe ndant, Danie l Earl Willi am s , o f one count of driving under the influence , first offe nse, a Cla s s A m i s d em eanor, one c ount of violation of the implied
c on se nt l aw, a

Cla ss Amis de me ano r, on e c ount o f v iol a tio n o f t he re g ist ratio n law , a

Cla ss C misdemeanor, and one count of violation of the open container law, a C l as s C m i s d emea nor. Following trial, the def

endant submitted to having seven pr ior driving under the influence offe nses and was convicted of driving under the influence , eig hth of fense , a Class E felony

. The trial c ourt sentenc ed the de fenda

nt as a Rang e I

offe nder to serve two y ear s in the custody of the De partment of Co rr ec t i o n

. The de fenda nt’s sole issue on appe al is that the evidenc e produc ed at tria l was insufficient to support his felony conviction. Followingour re view, we aff irm the judg ment of the trial court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e ntof t he Ci r c uitCo ur t i s A ffirm e d.

D. K EL LY T HOMAS , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and A LA N E. G LE NN , J., joined.

Ge or g e Mo rt on

Go og e , D istri c t Pu

bli c De fe nd e r; Gr e g ory D. Go ok in, As sis tant D istri c t Pu bli c De fe nd e r, a tto rn e y s f

or a pp e lla nt, Da nie l E arl Willi ams.
Robert E. C ooper, Jr., Attorney Gene ral a

nd Reporter ; Be njamin A. Ba ll, Assist ant Attorney Gene ral; James G. Woodall, District Attorney Gene ral; and A nna B anks Cash, Assistant District Attorney Gene ral, attorney s for a

ppellee, State of

Tenne ssee.

OP IN ION

At tr ia l, J us tin Le e Ad c ox tes ti fi e d th at on the nig ht o f N ov e mbe r 2 9, 20 06 , h e wa s in his-2-

house located at 55 Mitchell Street when he hear d a “big loud r umbling noise outside.” Mr. Adc ox looked out of his window and sa w an unf amiliar truck, driven by the def endant, travel fr om the road into his yard and back onto the street a gain bef ore pulling to a stop in Mr. Adcox’ s driveway. Upon approa ching the truc k, M r. Ad co x d i s covered the de fendant passed out in the driver ’s seat. Mr. Adc o x te s ti f

ie d th a t h is r o o mm a te th e n c a ll e d th e p o li c e a n d th at th e d e f e n d a n t r emained unconscious until the police ar rived.

Offic e r Sa mu el Gilley of the Ja ckson Police De partment wa s dispatched to 55 Mitchell Street to respond to the ca ll. Offic er Gi l l ey t est ified that he a pproac hed the truc k and obser ved the defe ndant, who “a

ppear ed to be a sleep with his head on t h e d ri v er ’s side window,” holding a Budweiser be er in his hand. Of fice r Gilley tappe d on the def endant’ s window and then ope ned the truc k d oo r t o try a ndwa

ke him up . O ff ic e r G ill e y te sti fi e d th a t he a ndOf fi c e r C are y H art

ha d to help the def

endant out of the truck to preve nt him from falling out. Once the def endant woke up and began ta lking, Office r Gilley noticed that the defe ndant smelled of alc ohol and had bloodshot eye s and slurre d speec h.

The de fenda nt told Offic er Gilley that he had been “drinking a lot ” and probably c ould not pass the fie ld sobriety tests. Office r Gilley administer ed three field sobriety tests: the four finger count, the ABC’s, and the one legge d stand. Off icer Gilley testified that the def endant pe rformed the “[ g]ene ral way an intoxicated pe rson would per form,” by c ounting out of order, f ailing to f ollow simple instructions and losing hi s balanc e. Af ter a dminist ering th e fi el d s o briety tests, Off icer Gilley place d the def

endant under arr est and rea d him the implied c onsent form, to w hich def endant ref u s ed co m p l i ance . Offic er G illey also testified that he ran a che ck on def endant’ s license that
came back w ith the status of revok ed ; this portion of defendant’s Offic ial Driving Recor d was submitt ed to the jury for

consideration.

Offic er Car ey Ha

rt of the J ac k s o n P o l i ce D epartment also responde d to the call fr om 55 Mitchell Street, ar

riving at the sce ne ar ound the same time a s Offic er G ill ey

. Offic er H art
c or ro bo rate d O ff

ic e r G ill e y’ s a c c ou nt of

the e ve nts . Fo llo wi ng Of fi c e r H art ’s te sti mon y, the State rested.

Th e de fe nd a nt c a lle d a s a wi tne ss M e lin da

Br a nc h, the de fe nd a nt’ s g ir lf ri e ndof thr e e ye ars

. Ms. Branch testified that on the night in question she and t h e d ef en d ant had be en at a

pool tournament at Sharp’s, a

local bar , when the de fendant began drinking heavily. Ms. Branch a nd the defe ndant left Sh ar p’s and pr ocee ded to another bar, the Corner Ta vern, w here the def endant progre ssively beca me more intoxicated. Ar o u n d midnight, M s. Branch and the def endant be gan arguing a bout the defe ndant’s exce ssive drinking. In an e ffort to defuse the situation, Ms. Branc h testified that she de cided to drop the defe ndant at his brothe r’ s h o u s e. Ms. Branch kne w that the defe ndant’s brothe r had r ece ntly moved to 51 Mit chell Stree t, but she had ne ver be en ther e bef ore. Before leaving the bar to drive the defe ndant home, Ms. Branch state d that she ca lled her daughter, Dea nna Presley, to mee t her at the d ef endant’ s brother’ s home on Mitchell Street. Ms. Branc h testified that she droppe d the defe ndant at 55 Mitchell Street under the mistaken belief

that it was his brother’s r esidenc e.
Ms. Branch c oncede d her lack of experience with driving trucks with t railer s connec ted on-3-

the ba c k. Ms. Br a nc h te sti fi e d that sh e dr ov e the de fe nd a nt’ s tr uc k th ro ug h th e ya

rdof 55 Mit c he ll Street bec ause she could not figure out another way to ge t the truck and trailer turned ar ound. She
sa id that a ft e r e ve ntu a lly pa rking the de fe nd a nt’ s tru c k in th e drive way, sh e le ft the de fe nd a nt “ ha lf passed out,” te lling him to e ither go back to sle ep or go inside his brother’s house . Ms. Branch took the ke ys ou t of the truc k’ s igni tio n an d “ tos se d th e m in sid e the ve hic le ” be fo re ge tti ng in the c ar w ith her daughter a nd going home. On cross-e xamination, Ms. Branch admitted that while the def endant
was “about passed out” when the y pulled in the driveway, she did not know what he did after she le ft

. Dea nna Presley, Ms. Bra nch’s daughter, testified that Ms. Branch called her on the night of No ve mbe r 2 9, 20 06 , to ask that she c ome pic k he r up at the de fe nd a nt’ s b ro the r’ s h ou se be c a us e Ms. Br a n c h a n d t h e d e f

e n d a n t h a d b e e n ar g u i n g

. M s

. P r e s l e y t e s t i f i e d o n c r o s s
- e x a m i n a t i o n t ha t Ms

. Branch was already at the M itchell Street address when she ca lled to ask for a ride. De pending on the tr a ff ic lig hts , M s. Pr e sle y est imate d tha t it too k he r te n to fif te e n minu te s to get fr om h e r h ome to M itc he ll St

re e t th a t ni gh t. W he n s he arrive d at 55 Mit c he ll St re e t, Ms. Pr e sle y te sti fi e d th a t Ms

. Branch w as “c oming around the house,” and got into the car with her. From there , they drove home. Ms. Pr e sle y’ s te sti mon y c on c lud e d th e de fe ns e ’s pr oo f, a s th e de fe nd a nt e le c te d n ot t o te sti fy on his own beha lf.

After a short deliber ation, the jury found de fend an t g uilty of driving under the influenc e, violating the impli ed conse nt law, violating the open conta iner law , and driving without proof of regis t ra t i o n

. T h e jury was unable to re ach a unanimous verdict a s to the count of driving on a
canc elled, suspende d or re voked license . The trial c ourt dec lare d a mistrial as to this count.

ANALY SIS

Th e de fe nd a nt a

rg ue s th a t th e e vid e nc e pr e se nt ed at tri a l w a s in su ff ic ie nt t o s up po rt

his conviction for driving unde r the influenc e. The defe ndant points to the jury’s alleged inc onsistent
ve rd ic ts t o s up po rt

his c on te nti on that th e e vid e nc e wa s in su ff ic ie nt t o e sta

bli sh be yo nda

re a so na ble doubt that defe ndant was driving or physically in control of his vehicle . Specifica lly, the defe ndant submits t hat if the jury f

ound that he wa s driving a truck while under the influenc e, they “ mu st a lso have f ound that [he] was driving on a revoked driver’s li cense at t he same time.” The State c ontends that the evidenc e pre sented at trial establishes the e lements of the of fense of driving under

the influence beyond a r easona ble doubt. Following our review, we agre e with the State. An appe llate court's standa rd of r eview w hen the de fendant questions the sufficienc y of the evidenc e on appe al is “whe ther, a fter vie wi n g t h e evide nce in the light most favora ble to the prosec ution, any rational trier of fact could have found the essential elements of the crime beyond
a re a so na ble do ub t.” Ja c ks on v. Vi rg ini a , 443 U.S. 307, 319 (1979). The appellate court doe s not rew eigh the evidenc e; rather, it pr esumes that the jury has re solved all conflicts in the testimony and draw n all rea sonable infe renc es fr om the evidenc e in fa vor of the state. See Sta te v. She ff ie ld, 676 S.W.2d 542, 547 (Tenn. 1984) ; S tate v. Cabba ge , 571 S.W.2d 832, 835 (Tenn. 1978) . Questions
re ga rd ing wi tne ss cred ib ility, c on fl ic ts i n te sti mon y, a ndthe we igh t a ndva lue to b e giv e n to evidenc e we re r esolved by the jury. State v. Bland, 95 8 S. W .2 d 65 1, 65 9 ( Te nn . 1 99 7) . A gu ilt y verdic t removes the pr esumption of innocenc e and r eplac es it with a presumption of guilt, and on-4-

appea l the defe ndant has the bur den of illustrating why the evidenc e is insufficient to support the jury' s v e rd ic t. I d. ; S ta te v. Tu gg le , 63 9 S. W .2 d 9 13 , 9 14 (T e nn . 1 98 2) . T his stand ardapp lie s to findings of guilt based upon direc t evidenc e, cir cumstantial evidenc e, or a combination of both direc t
a ndc ir c ums ta nti a l e vid e nc e

. Sta te v. Pe nd e rg ra ss , 13 S.W.3d 389, 392-93 (Te nn. Crim. App. 1999).

The de fenda nt was convic ted under section 55-10- 401 of the Te nnessee C o d e Annotate d, wh ic h p ro vid e s: (a) It is unlawful for any per son to drive or to be in physical c ontrol of any automobile or other motor driven vehic le on any of the public roa ds and highways of the state, or

on any stree ts or alleys, or while on the premises of any shopping cente r, trailer

park or any apa rtment ho u s e co m plex, or a ny other pre mises that is genera lly freque nted by the public at lar ge, while:
(1) Under the influenc e of a ny intoxicant . . . . The jury c ould not rea ch a unanimous verdic t as to the cha rge of driving while the privilege to do so is ca n c e ll e d , s u s p e n d e d o r r e v o k e d

. T h is o f

f e n s e is c o d if

ie d in s e c ti o n 5 5

- 5 0

- 5 0 4 o f the Te nn e sse e Cod e An no ta te d, wh ic h p ro vid e s in re le va nt p art :

(a )( 1) A p e rs on wh o d ri ve s a mot or ve hic le wi thin the e nti re wi dth betwee n the boundary lines of every way publicly maintained that is open to the use of the publ ic for purposes of vehicular trave l, or the pre mises of any shopping cente r, manufa cture d housing complex or apartment house complex or a ny other premises fr equente d by the public at large at a time when the pe rson’s privilege to do so is cance lled, suspended, or revoke d commits a Class B m isdemeanor

. Def endant argues that the jury’s inability to reac h a unanimous ver dict on the cha rge of driving while the privilege is re voked implies that the jury questioned whe ther o r not defe ndant actua ll y d ro v e or had physical contr ol over his vehicle . It is well established in Tenne ssee that “consistenc y betwee n verdic ts on separate counts of an indi ctment i s not nece ssary,” as ea ch count is to be rega r d e d a s a s e p ar a te o f f e n s e

. W ig g in s v
. St a te , 4 9 8 S. W

. 2 d 9 2 , 9 3 ( T e n n

. 1 9 7 3 ). We decline to e ngage in spe culation as to the jury’ s rationale in reac hing its verdic t. Our inquiry foc uses on whether

the evidenc e is sufficie nt to support the verdic t f or the offe nse of which the de fendant was a ctually convicte d, which is driving under the influence in this case

. If we are satisfied that the evidenc e produc ed esta

blishes guilt of the offense , then we w ill not engage in pure speculation as to the jury’s rationale re garding the a lleged inconsistent ver dict.

Viewe d in the l ight most favor able to the S tate, the evidenc e presented at trial supports the defe ndant’s convic tion of d ri v i ng under the influence . Justin Adcox testified that he sa w the de fe nd a nt dri ve fr om the ro a d in to his ya rd be fo re sw e rv ing ba c k out ont o the ro a d an d parking in his driveway. Mr . Adcox discove red t h e def endant pa ssed out behind the whe el of the ve hicle. Upon ar rival at the sc ene, the police off icer s found the defe ndant aslee p behind the whe el with a can of bee r in his hand. The de fenda nt admitted to t h e o ffice rs that he wa s drunk on the night of the incident. We conclude that the proof e stablishes the eleme nts of t h e o ffe nse of driving under the influence beyond a r easona ble doubt.-5- CONCLUSION Based upon the f

oregoing, the judgment of the Madison County Ci rcuit Court is affirmed.

___________________________________ D. KEL L Y THOMAS, JR ., J UDGE