# FILED
June 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9707-CC-00273 Appellee, ) ) GREENE COUNTY VS. ) ) HON. BEN K. WEXLER, RICKY DAL E McNEESE, ) JUDGE ) Appellant. ) (Driving While Under the Influenc e)

FOR THE APPE LLANT: FOR THE APPELLEE:
EDW ARD KE RSH AW JOHN KNOX WALKUP 128 South Main St. Attorney General & Repor ter Suite 102 Greeneville, TN 37743 ELLEN H. POLLACK Asst. Attorney General 425 Fifth Ave., North Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General ERIC D. CHRISTIA

NSEN Asst. District Attor

ney General 109 South Main St. Greeneville, TN 37743

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The Greene C oun ty grand jury i ndicted the defendant on one count of drivingwhile under the influence. Followinga trial, a jury convicted him of the charged offense. Immediately following the verdict, the trial judge sentenced him to elev en months, twenty-nine days with all but ten day

s suspended. Thedef endant raises the following issues on appeal:

1. Whether the trial court erred when it prevent ed the defendant from cross- exam ining a witness about various levels of intoxicat ion and a person’s ability to drive effect ively. 2. Whe ther the trial court erred w hen it admitted into evidence a bottle of medication fou nd in the defendant’s truck. 3. Whether the trial court erred when it refused topermit the juryto view the actual v ehicle in which the defendant had been sitting at the time of his arrest. 4. Whether the trial court erred when it denied t h e defendant’s request for a special jury instruction. 5. Whet her the evi dence is sufficient to support the defendant’s conviction. 6. Whether the defendant’s sentence is excessi ve. After a review of

the record and applicable l aw, we affirm the judgment of the court bel ow.

In the ea rly morning hours of January 27, 1996, Greeneville city polic e officer s spot ted the defendant’s truck sitting in the gravel lot of Universal America, Inc. Auxiliary Officer Carl Morgan tes tified that after

he spotted the truck, he and his partner pulled next to it to find out wh ether anything was wrong. Morgan s aid he foun d the defendant sitting in the driv er’s seat a nd a female sitting in the passenger seat. He further testified that the truck’s e ngine was running and its lights wer e on. Morgan said the defendant had spoken in a slurred voice with a thick tongue. The defendant told him3

that his girlfriend was sick.

When Morgan asked the defendant to ex it the truck, the

defendant began to walk in an u nsteady manner. Morgan t estified that he had smelled alcohol on the defendant. Because the defendant had parked in a gravel area, Mor gan and his fellow officer asked the defendant to move to a smoother surface close to a nearby building. Once there, the defendant agreed to perform several field sobr iety tests. Morgan testified that he had performed “poorly.”

P at Hanki ns, Morgan’s fellow officer, actually administered the tests. He told the court that the defendant’s speech had been slur red and “very mumbly.” Hankins first asked the defendant to perform the “walk-and-turn test.” The defendant could not keep his balance while doing this t est and had to put his hands on the near by buildingto steady himself . Additi onally , the defe ndant fa iled to t ake the number of steps as instructed and he missed hitting heel t o toe on numerous steps. The defendant was also unable to keep his arms at his side.

Dur ing the second test, the one-leg -stand, the defendant w as unable to hol d the st ance for the required five seconds. He put his leg down after three seconds an d told Hankins that he had a bad knee. H ow ever, Ha nkins testified that he had earl ier asked the defendantabout t he presence of any physical problems and the defendant made no comment about a bad knee.

As the third test, the defendant was asked to recite the alphabet. Hankins testified that the defendant had “started, got to H, started over again at E, went to R, got mixed up, then he started saying them too fast . . . .” Hanki ns said the defendant had4

been mumbli ng so t hat he could not determine whether the defendant had finished reciting the alphabet or not. The defendant was also unable to perform the fourth test, the finger-to-nose test. He was unable to h it the tip of his nose on both attempts

. From these tests, Hankins determined that the defendant w as impaired by alcohol

and that he was not capable of operating a vehicle.

Hankinsfurther

testified that he had found “a collection of beer cans” in the defendant’s truck. He found one empty can of Bus ch beer, four

empty Budweiser

bottles,
one empty can of Budweiser, tw o cold full cans

of Budweiser, and five more empty cans in the back ofthe truck. Hankins also found a bottle of pres cription medicine prescr ibed forthe def endant. The bottle contained a war ning label that said, “may caus e drowsi ness. Alcohol may inten se [sic] this eff ect. Use care when o perating a car o r dangerous machinery.”

As the defendant was being arr ested, his br

other arr ived and asked if he could take the defendant’s truck home. Hankins refused his request and had the truck towed. Hankins testified that the defendant had never

said he had been waiting for his brother. The officer s then took the defendant to the station w here he consented to a breathalyser

test. The test showed the defendant had a breath alcohol concentr ation of fourteen hundredths of one percent (.14%)

.

The defendant then took the stand and testified that prior to his arres

t, he and his girlfriend had picked up a six pack of beer and had gone to a friend’s house. He said he had consumed two of the beers. Then arou nd 10:00 or 10:30 p.m., he and his girlfriend went to a

local bar, The Hide away. While there, the defen dant had two more beers as did his girlfriend . The pair left the bar close to midnight. The defendant testified5

that as they had been leaving the bar, his girlfriend stepped off the threshold and f ell and hit her head. He said that she hadappeared to be a little groggy but that she had said she was okay to drive home. However, the defendant s aid that it became apparent that the girlfriend was not alright to drive and he had her pull over at the Est es Truck ing Company p arking lot . From the re, the de fendan t drove the truck across the str eet to a gravel lot. He said he moved the truck there because it was a safe place to par k and no one was ever there.

The defendant said he had then decided to sit in the g ravel lot andwait for his brother who gets off workaround m idnight a nd always drives by this par ticular spot. He said while he had been waiting, he drank another two beers. He testified that while he felt he could have driven home, he did not because it would have been “too risky.” He testified that “the mere smell of alcohol on your breath can get y ou into a lot

of trouble in this town.” He furth er testified that the truck’s headlig hts had been on as well as the interior lights. He said the t ruck had a q uirk in that the interior lights would not work unless the headlights were glowing. The inter ior lights hadbeen on so that he could see his girlfriend.

As his first issue, the defendant contends that the trial court erred when it prohibited the defendant from questioning Officer Hankins about

“the various percent o

f intoxication levels at which persons may drive effectiv ely.”The defendant contends that such qu estioning was “highly relevant, because it tends to show that the .10 perc en t blood alcohol ratio that has been established as a presumption by our law is just that ‘a presumption’ it is not a con clusion.”

D uring the cross-examination of Officer Hankins, defe nse counse l aske d6

Hankinsabout the highest reading he had ever seen on a Breathaly ser te st. Counsel then attempted to further question Hankins about the condition of the person who had the highes t reading. The State objected on grounds of materiality an d relevancy an d th e objection was sustained. Defense counsel then attempted to a sk Hanki ns whethe r different people with t he same B reathalyser result c ould have varying

degrees of impairment. Again, the State o bjected and the trial court agreed.

First, evidence is considered relevant if it has "any tendency to make the existence of any fact that is o f co nsequence to the determination of the action more probable or less probable than it w ould be without the evi dence." Tenn. R. Evid. 401. Second, the scope of cross-examinati on is largely w ithin the trial court's discretion and that di scretion will not be disturbed absent a finding of abuse

. State v. Lew is , 80 3 S.W.2d 260, 262 (Tenn. Crim. App . 1990). Thus, we have no trouble concluding that the trial court did not err when it refuse d to allow defense counsel to engage in the que stioning outlined above. The questi oning had no tendency to make any fact of consequence to the defendant’s case more or less probable. It w as completely irrelev

ant to the proceeding and, therefore, we find no abuse of discretion on behalf of the tri al court. The jury had already hea rd ample evidence of how this defendant was impaired. How someone other tha n the def endant m ay have acted at a similar level of intoxicati on has no place in this trial . This issue is witho ut merit.

As his second issue, the defendant argues that the trial court erred when it admitted intoevidence a bottle of medication that was found in the def endant’s truck at the time of his arrest. He contends that the bottle was irr elevant and prejudicial b ec ause the jury may have been given the impressi on that the defendant had been mixing alcohol and pre

scription medication.7 At trial, Officer Hankins testified that he had fou nd a bottle of medication in the defendant’s car. The trial cour t allowed the introduction of the bottle despite the defendant’s objections. The trial court told defense counsel that this issue should ha ve been raised earlier and overruled the obje ction. Ho wever, the trial judge told defense counsel that he would be allowed a wide ber th in cross-examining

the officer. In addition, the defendant testified that while th e bottle had been in his car, he had not taken any of the medication on that

night. From this, we conclude that the error, if any, was certainly harmless beyond a reasonable doubt. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a). This issue is without meri

t.

In his third issue, the

defendant argues that the trial court erred when it refused to allow the jury to view the truck that he had been driving when he was arrested. He wanted to show the jury that in order to operate the interior lights the headlights must be on as well. The State objec ted because of the ten month lap se between the defendant’s arrest and the trial. The trial j udge agreed, saying , “Yeah, anything can be changed. That’s just too long. [The j ury] can be lieve thi s witness or not beli eve him, whichever

they desire to do. I’m sure that would be the truth if we went over there at this time.”

The defendant argues that he should no t be punished for the ten month delay prior to trial. He claims that “[t]o punish [him] for the delay in our judicial system is unconstitutional.”

The defendant is missing the point.He was not being puni shed for the delay in going to trial . Rather, the trial cour t was pointing out that showing the truck to the jury would require proof from the defendant that the truck had not been altered since the date of the offense. The defendant made noeffort to present such proof other than the defendant’s statement that the truck ha d had that quirk f or sometime. We find no8

error in the trial court’s refusal to allow the jur y to view the tr

uck. As the trial judge noted, the truck would have certainly operated as th e defendant said it would. The jury heard the defendant testify that the headlig hts had to be on in order for the i nt erior lights to work. Itwas then for t he jury to decide whether or not to believe the defendant. This issue is without meri

t.

The defendant next contend s that the trial court erred when it denied his request for a special jury in struction. He request ed that the jury specifical ly be told that the defendant “could not be found guilty for driving on a road but rather it had to be while
on the parking lot.” This is because the indictment all eged that th e defendant had committed the offense of driving while intoxicated by being

in physical control

of a motor vehicle. The indictment did not allege that the offense was committed by the defend ant’s drivinga vehicle. He also argues that the trial judge incor

rectly charged the j ury that the defendant could be found guilty if he were in physical control of a vehicle on a public road, highway, street, or alley, or upon premises generallyfrequented by the public. He contends this is error because the indictme nt only cha rged him with bein g in physical control of a vehicle upon premises generally frequented by the public, not on a public road, highway, st reet, or alley.

The difficulty here is that the defendant did admit to driving his truck across the road and into the gravel lot. However, he was not indicted for doing so. Thus, the juryco uld not have considered his admission as evidence of his guilt of the char

ge d offense. This point became somewhat confused during the Sta te’s cl osing argu ment. As a resul t, the tri al judge ga ve the fo llowing inst ruction t o the jury:

The indictment in this case ch arge s [the defendant] unlawfullycommitted the offense of driving while intoxicated bybeing in physical

control of a motor vehicle on a premis es generallyfrequented by the public at large, to-w

it: the parking9 lot of Universal American, Inc. The defendant has admitted that he drove across the road to get into this pa rking lot when his gi rl fri end was . . . something happened to her. He’s not char ged in the indictment

with driving on a public ro ad, b ut he is charged with being under the influence and having in his control a vehicle upon a premises generally frequented by the public. Whether that was in his control or not is a que stion that you all will have to deci de . Now, th e fact that he did drive it across the road can be looked at as to w hether he had the authority to move it, and that can be lo oked at whether it wa

s in his control. I’ll

charge you the normal c harge after lunch.
The jury was then dis missed for lunch and when its members returned, the trial judge gave the following instruc tion: Any person who commits the offense of driving under the influen ce is guilty of a crim e. For you to find the defendant guilty of

this off ense the State mu st have proven beyond a reasonable doubt the exist ence of the following essential elements: No. 1, that the defendant was driv ing or in physical control of an a ut omobile, and that the defendant was doi ng so on a public road, highw ay, street or alley, or upon a premises generally frequented by the public at l arge; and No. 3 [sic], that the defendant was under the influence of an intoxicant or narcoti c drug . . . . The judge further instructed the jury on the meaning of “in physical control of the motor vehicle.”

The defendant argues that the jury was misled by this

second instruction. While the potential for confusion is present, we cannot conclud e that reversible error has occurred. Because the evidence is s ufficient to find that the defendant was i ntoxicated while in physical control of his vehicle in an area ge nerally f requente d by the pu blic, we
can find no harm su ffe re d by t he defe nd an t as a

re su lt of th e c on fl ic ti ngin st ru ct io ns . We also note thatduring its deliberati ons, the jury sent a note t o the trial judge askin g for a definition of “generally” and “public at large.” This is certainly an indication that the jury
was not confused by the conflicting instructions andthat the jury’s ve rdict was based on1 0

the proper evidence.

The defendant, however, continues to argue that the verdict cannot stand because the State failed to prove that the lot in whi ch he was sitting w as an area generallyfrequented by the public. A defendant challenging the suf ficiency of the proof has the burden of illustrating to this Court why the evidence is insufficient t o support the verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict of gui lt for l ack of sufficient evidence unless the facts contained in the recor d and any inferences which may be drawn from the facts are insuffici ent, as a matter of law, for a rational trier of fact to find the defendant guil ty beyond a reasonable doubt

. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982).

As noted above, su fficie nt eviden ce existed such that the jury co uld have properlyconcluded that the establishment’s parking lot was “ generally frequented by the public at large.” Officer Hanki ns testified that the grav el lot belonged to Univ ersal America and that the defendant’s truck was sitting at the edge of the lot next to the road’s emergency lane. He further testified that the are a in which the defendant had park ed
was generally frequented by the public. The defendant, however, testified that he had chosen to park in the gravel lot becaus e he had once workedat Universal Americ a and knew that it was a warehouse where items are loaded in and out on an infrequent basis. On cross-examination, the defendant admitted that the gravel lot was next to a public road and that it was a lot that belonged to a business establishment. He also admitted that the lot was not fenced, that he saw no “No Trespassing ” signs, and that he knew of
no restrictions on the lot . From the above tes timony, we conclude that the jury had sufficientevidence to determine that the area where the defenda nt had stopped his truck
was an area generally freq uented by the public at lar ge. The defendant does not1 1

challenge the other elements of the offense. Thus, we find no merit to the def endant’s sufficiency challenge.

The defendant next argues that his sentence is excessiv

e. The trial court sentenced the defendantto eleven months, twenty-nin e days with a ll but ten days
su spended. The defendant argues that he should have been given the minim u m sentence of forty-eight hours of incarceration.

When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C .A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40-35-401(d) Sentencing C ommission Comments. This presumpti on, however , “i s conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and al l relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

In this case, the trial court noted the defendant’s previous criminal history
as a factor in determining the length of the sentence. The defendant had been convicted of driving while under the influence in 1981 and several other drivingoffenses during this
same time period. The defendant has failed to s how that the sentence is improper. There being no abuse of discretion on behalf of the tr ial court, w e affirm the defendant’s sentence.

For the f oregoing re asons, we a ffirm t he judgme nt of the court bel ow.

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_________

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_ JOHN H. PEAY, Judge
CONCUR:1 2

_______________________________ PAUL G. SUMMERS, Ju dge

_______________________________ CORNELIA A. CLARK , Special Judge