IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 7, 2019

STATE OF TENNESSEE v. CEDRICK DEWAYNE WHITESIDE

Appeal from the Circuit Court for Henderson County

No. 17221-3 Kyle Atkins, Judge

___________________________________

No. W2018-01692-CCA-R3-CD

___________________________________

Defendant, Cedrick Dewayne Whiteside, was found guilty of driving under the influence 

of an intoxicant, criminal impersonation, driving on a cancelled, suspended, or revoked, 

license, and failure to exercise due care. On appeal, he argues that the evidence presented 

at trial was insufficient for the trier of fact to find him guilty of driving under the 

influence of an intoxicant and for failure to exercise due care. In light of the evidence 

presented, we uphold Defendant’s driving under the influence conviction but reverse and 

dismiss the jury’s finding of failure to exercise due care. 

Tenn. R. App. P. 3 Appeal as of Right; 

Judgment of the Circuit Court Affirmed in Part; Reversed and Dismissed in Part

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR. and D. KELLY THOMAS, JR., JJ., joined.

George Morton Googe, District Public Defender; and Hayley F. Johnson, Assistant 

Public Defender, for the appellant, Cedrick Dewayne Whiteside.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; James G. (Jerry) Woodall, District Attorney General; and Eric V. 

Wood and Matthew A. Floyd, Assistant District Attorneys General, for the appellee, State 

of Tennessee.

OPINION

Factual Background 

This case arises from Defendant’s arrest on April 14, 2017 following a single 

vehicle wreck. Subsequently, the Henderson County Grand Jury charged Defendant with 

07/16/2019
- 2 -

the following five counts: count one, driving under the influence of an intoxicant in 

violation of Tenn. Code Ann. § 55-10-401; count two, reckless endangerment in violation 

of Tenn. Code Ann. § 39-13-103; count three, criminal impersonation in violation of 

Tenn. Code Ann. § 39-16-301; count four, driving on a cancelled, suspended or revoked 

license in violation of Tenn. Code Ann. § 55-50-504; and count five, failing to exercise 

due care in violation of Tenn. Code Ann. § 55-8-136. Defendant’s reckless 

endangerment charge was dismissed nolle prosequi prior to trial.

Following a jury trial, Defendant was found guilty on all four counts presented to 

the jury. The trial court ordered all of Defendant’s sentences to be served concurrently 

with each other for a total effective sentence of eleven months and twenty-nine days. 

Defendant did not file a motion for a new trial but filed an appeal to this Court on 

September 17, 2018, challenging the sufficiency of the evidence presented to convict him 

of driving under the influence and failing to exercise due care.

Trial

On April 14, 2017, between ten and eleven o’clock p.m., Trooper Douglas 

Williams of the Tennessee Highway Patrol was dispatched to a single vehicle crash on 

Interstate 40 in Henderson County. Prior to arriving on the scene, Trooper Williams was 

assisting another motorist approximately a mile away, and a dash camera on his patrol 

vehicle began recording as he left to investigate Defendant’s accident. The dash camera, 

as well as the camera recording the activity in the back seat of the vehicle, was admitted 

into evidence. After arriving upon the scene, Trooper Williams located Defendant’s Jeep 

Cherokee on an embankment facing north off of the road. The vehicle had been traveling 

west bound on Interstate 40 when it wrecked near the 104 mile-marker.

Trooper Williams testified that after exiting his vehicle, he immediately 

“check[ed] the crash scene to see if any injured persons [were] there.” Defendant was 

standing near the vehicle, and a female passenger was stuck inside with the car, which 

was still running. Trooper Williams determined Defendant to be the driver of the vehicle 

because the trapped passenger was in the front right seat. Trooper Williams testified that 

his main concern initially was to get her out of the vehicle because the “Jeep was 

smoking” and he did not want her to “burn up in it[.]” Trooper Williams successfully 

turned off the vehicle and shifted its gear into the park position. He explained that during 

this process he noticed an open container of alcohol in the vehicle and determined that 

the female passenger was intoxicated. Additionally, he testified that there was an odor of 

alcohol coming from inside the car. The female passenger was removed from the vehicle 

and received help from the emergency services at the scene. 
- 3 -

After assisting with the trapped passenger, Trooper Williams began questioning 

Defendant about the wreck. Trooper Williams testified that Defendant was “kind of 

frantic” and “worked up.” He explained that he smelled an odor of an alcoholic beverage 

coming from Defendant’s person. When asked about the wreck, Defendant explained

that another car had pulled out in front of him. However, Trooper Williams had no other 

information that another vehicle was involved in the wreck. Trooper Williams asked 

Defendant if he was injured, and Defendant initially responded that only his arm was in 

pain.

After inspecting his injury, Trooper Williams asked Defendant for his 

identification. Defendant gave him false identification which was admitted into evidence 

at trial. In addition, Trooper Williams asked Defendant if he had been drinking any 

alcoholic beverages before the accident to which Defendant confirmed he had been 

drinking about three hours prior to the wreck. This encounter was recorded on the dash 

camera of the patrol vehicle while Trooper Williams and Defendant were standing in 

front of the car. 

After their initial conversation, Trooper Williams attempted to administer a series 

of sobriety tests to Defendant to determine if he was intoxicated. At trial, Trooper 

Williams testified that he always asks a driver to complete three different sobriety tests, 

and if an individual passes the tests, the individual is free to leave. Trooper Williams 

asked Defendant to begin the walk and turn test. This test requires a defendant to walk 

heel-to-toe for a certain length and then turn around to walk back in the same manner. 

Initially, Defendant began the test, but failed to continue because he started complaining 

of an injury to his hip. Trooper Williams testified that Defendant actually failed the 

beginning stage of the test and such failure was an indicator of impairment. Trooper 

Williams asked him to continue performing the sobriety test, but Defendant adamantly 

refused, asserting that his injury prevented him from doing so. At this point, Trooper 

Williams placed him under arrest. 

Trooper Williams testified that Defendant’s demeanor became “extremely 

belligerent” after his arrest. He explained that Defendant began yelling “all kinds of 

things” such as expletives and racial comments towards both Trooper Williams and 

members of the emergency services. Trooper Williams testified that he tried to explain 

Tennessee’s Implied Consent Advisement to Defendant, but Defendant continued 

“screaming and yelling at [him] so loud[ly] [he did not] know if [Defendant] heard it or 

not.” The consent form was recited at trial and admitted into evidence as an exhibit. It 

reads as follows:

If you refuse to supply a sample for breath or blood testing, no test will be 

conducted unless required by law or authorized by a search warrant or 
- 4 -

exigent circumstances. If you do not consent the law permits me to apply 

for a search warrant for blood/or breath sample for chemical testing. If you 

do refuse to provide a sample for testing, and the Court finds that you 

refused, T.C.A. 55-10-407 requires that your license will be suspended for 

a least one year and up to five years, depending on your driving history. If 

you refuse you may be ordered to install and keep an ignition interlock on 

your vehicle for a year or more. 

Trooper Williams confirmed reading the advisement to Defendant and testified that 

Defendant “continued cussing” at him instead of signing the form. This conversation was 

recorded by the camera facing the backseat of the patrol car. 

Trooper Williams testified that Defendant is also seen on camera removing his 

wallet from his pants. Trooper Williams stated that he searched his car after Defendant’s 

arrest and found Defendant’s accurate identification stuffed under the seat. He explained 

that the identification “just didn’t fall in there, it was stuffed in there.” In addition, this 

identification was different than the one that Defendant had given to Trooper Williams in 

their initial conversation. With Defendant’s correct information, Trooper Williams 

completed a driver’s license check and discovered that Defendant’s driver’s license was 

revoked. A record from the Tennessee Department of Safety was entered into evidence 

by the State to show his revoked status. 

Trooper Williams testified that during the transport to central booking, he could 

smell an odor of alcohol coming from Defendant in the back seat. Further, Trooper 

Williams testified that patrol car footage shows Defendant kicking the back doors of the 

car after arriving at the station. 

On cross-examination, Trooper Williams explained that he had worked onevehicle crashes before and that he only recalled a few of those accidents involving 

alcohol. He further explained that he had not seen the accident actually occur but 

believed it was serious enough for Defendant’s car to physically roll. Additionally, he 

testified it was not raining the night of the accident but he could not recall if it had rained 

earlier in the day. 

In addition, Trooper Williams testified that Defendant did not seem to be 

staggering or swaying. He confirmed that Defendant’s cognitive abilities appeared to be 

intact and that Defendant attempted to comply with his orders. When asked about his 

frustration with Defendant’s hip injury, Trooper Williams testified that Defendant had not 

mentioned his hip hurting until he was asked to perform the walk and turn test. Trooper 

Williams further explained that “it’s normal for someone once they know they’re going 

to be tested, if they’re under the influence to try to get their way out of it to make up 
- 5 -

things.” He also acknowledged that drinking hours prior to driving was insufficient by 

itself to prove the offense of driving under the influence. He recognized that the degree of 

intoxication has to rise to the level of preventing someone from safely driving. He also 

conceded that he did not conduct a blood or breath test on Defendant and did not take the 

container of alcohol from Defendant’s vehicle into evidence. 

Following Trooper Williams’ testimony, the defense called Mr. Donald McCaslin 

to the stand to testify to Defendant’s prior attendance in behavioral classes. Mr. 

McCaslin explained that he was a former preacher who taught classes in the prison 

community and that Defendant attended some of the classes he provided. Mr. McCaslin 

believed that Defendant attended “Managing My Anger,” “Sense of Self,” and 

“Substance Abuse.” Additionally, he confirmed that Defendant received a certificate in 

some of those classes. Mr. McCaslin did not believe that Defendant completed the 

“Substance Abuse” class but had attended some of the sessions.

Mr. McCaslin clarified that Defendant received certificates in “Attitudes and 

Behavior” and “Managing My Anger.” He also reconfirmed his belief that Defendant 

participated in some of the sessions on “Substance Abuse” but that he did not receive a 

certificate for it like the other two classes. 

ANALYSIS

On appeal, Defendant challenges the sufficiency of the evidence presented at trial 

to support his convictions of driving under the influence and failing to exercise due care. 

The State contends that the evidence presented was sufficient for the trier of fact to find 

Defendant guilty of both counts. In addition to the aforementioned claims, Defendant 

argues that there was insufficient evidence for the trier of fact to find him guilty of 

reckless endangerment. However, the reckless endangerment charge was dismissed. In 

regard to Defendant’s convictions of driving under the influence and failing to exercise 

due care, we affirm in part and reverse in part. 

The standard for appellate review of a claim challenging the sufficiency of the 

State's evidence is “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. 

App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a 

claim of insufficient evidence, a defendant must demonstrate that no reasonable trier of 

fact could have found the essential elements of the offense beyond a reasonable doubt. 

See Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction 

is predicated on direct or circumstantial evidence, or a combination of both. State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
- 6 -

On appellate review, “we afford the prosecution the strongest legitimate view of 

the evidence as well as all reasonable and legitimate inferences which may be drawn 

therefrom.” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of 

witnesses and the weight and value to be given the evidence, as well as all factual 

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). 

This court presumes that the jury has afforded the State all reasonable inferences 

from the evidence and resolved all conflicts in the testimony in favor of the State; as 

such, we will not substitute our own inferences drawn from the evidence for those drawn 

by the jury, nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 

379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 

1984). Because a jury conviction removes the presumption of innocence that appellant 

enjoyed at trial and replaces it with one of guilt at the appellate level, the burden of proof 

shifts from the State to the convicted appellant, who must demonstrate to this court that 

the evidence is insufficient to support the jury's findings. Davis, 354 S.W.3d at 729 

(citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

Driving Under the Influence 

Defendant argues that the evidence presented at trial is insufficient to support his 

driving under the influence conviction because the State could not prove that Defendant 

was under the influence of any intoxicant, and Defendant’s injuries rendered him unable 

to perform the field sobriety tests. The State contends that the evidence presented from 

Trooper Williams, the smell of alcohol that emitted from Defendant, Defendant’s failure 

and refusal to complete the field sobriety tests, and Defendant’s belligerent behavior is 

sufficient for a jury to find him guilty of driving under the influence. We agree with the 

State. 

As pertinent to our review, code section 55-10-401 provides: 

It is unlawful for any person to drive or be in physical control of any 

automobile or other motor driven vehicle on any of the public roads and 

highways of the state . . . while under the influence of any intoxicant, . . .

substance affecting the central nervous system, or combination thereof that 

impairs the driver’s ability to safely operate a motor vehicle by depriving 

the driver of the clearness of mind and control of oneself that the driver 

would otherwise possess.
- 7 -

Tenn. Code Ann. § 55-10-401 (West). 

In the light most favorable to the State, the evidence shows that Defendant was 

driving under the influence at the time of his accident. In the beginning of Trooper 

Williams’ investigation into Defendants’ wreck, he noticed that there was an open 

container of alcohol in the vehicle, and he smelled alcohol on Defendant when their 

conversation began. Additionally, Defendant admitted to the officer that he had been 

drinking three hours prior to the wreck. Defendant was asked to complete three field 

sobriety tests. When asked to perform the walk and turn test, Defendant failed the initial 

part and then refused to continue performing the test. Defendant began complaining of 

an injury to his hip that he had not mentioned prior to beginning the test. The dash 

camera footage shows Defendant struggling to maintain his balance at the beginning of 

the walk and turn test and then adamantly refusing to continue walking. A reasonable 

trier of fact could find that this was due to his level of intoxication and not because of a 

hip injury. 

Lastly, a jury could legitimately find that Defendant’s behavior following his 

arrest was due to his level of intoxication. Defendant showed an outburst of “belligerent” 

behavior towards Trooper Williams after being arrested and continued to do so during his 

time in the patrol vehicle. Camera footage from inside the vehicle showed Defendant 

yelling at Trooper Williams and calling him inappropriate names. The footage also 

showed Defendant kicking the patrol car doors while he was waiting to be taken into 

central booking. Even though Mr. McCaslin testified as to Defendant’s anger problems, 

presumably while sober, to discredit intoxication as a cause of Defendant’s behavior, the 

jury chose to believe Trooper Williams’ testimony that Defendant was intoxicated 

enough to impair his ability to safely operate a motor vehicle. This Court does not 

question or reweigh the credibility of witnesses or the evidence presented. Bland, 958 

S.W.2d at 659. This is sufficient evidence for a jury to conclude that Defendant was 

unable to safely operate a motor vehicle due to his level of intoxication. Therefore, a 

reasonable trier of fact could find beyond a reasonable doubt that Defendant was guilty of 

driving under the influence. 

Failure to Exercise Due Care 

Additionally, Defendant argues that there was insufficient evidence to find him 

guilty of failing to exercise due care. Defendant asserts that this charge was based on the 

flawed inferences drawn by the trier of fact to convict Defendant of driving under the 

influence. The State contends that Defendant’s single-car crash that resulted in an 

accident without any other vehicles involved or weather conditions was sufficient 

evidence to find Defendant guilty of failing to exercise due care. While we disagree that 
- 8 -

there was insufficient evidence to find Defendant guilty of driving under the influence, 

we agree that the State failed to prove all the elements of the failure to exercise due care 

statute. 

Quoting directly from the statute, the “due care clause” provides: 

Notwithstanding any speed limit or zone in effect at the time, or right-ofway rules that may be applicable, every driver of a vehicle shall exercise 

due care by operating the vehicle at a safe speed, by maintaining a safe 

lookout, by keeping the vehicle under proper control and by devoting full 

time and attention to operating the vehicle, under the existing 

circumstances as necessary in order to be able to see and to avoid 

endangering life, limb or property and to see and avoid colliding with any 

other vehicle or person, or any road sign, guard rail or any fixed object 

either legally using or legally parked or legally placed, upon any roadway, 

within or beside the roadway right-of-way including, but not limited to, any 

adjacent sidewalk, bicycle lane, shoulder or berm.

Tenn. Code Ann. § 55-8-136 (b) (emphasis added). Count Five of the Indictment 

substantially mirrors the language of the applicable statute:

[B]y failing to operate vehicle at a safe speed, to maintain a safe lookout, to 

keep vehicle under proper control, and to devote full time and attention to 

operating the vehicle, under existing circumstances as necessary in order to 

be able to see and to avoid endangering life, limb, or property, in violation 

of § 55-8-136, Tennessee Code Annotated, all of which is against the peace 

and dignity of the State of Tennessee. 

It is the Court’s conclusion that our state legislature intended for the statute to 

require each element to be proven with sufficient evidence, beyond a reasonable doubt, in 

order to find a defendant in violation of failing to exercise due care. The primary 

objective of statutory construction is to ascertain and give effect to the intent of the 

legislature. Auto Credit of Nashville v. Wimmer, 231 S.W.3d 896 (Tenn. 2007). If a 

statute is clear and unambiguous, courts will find that intent in the plain and ordinary 

meaning of its language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn. 

2007). Finding no ambiguity and looking at the plain and ordinary language of 

Tennessee Code Annotated § 55-8-136(b), the elements are listed in a manner that 

requires the State to prove that all of the listed requirements were violated in order to find 

a defendant guilty of failing to exercise due care. State v. Cleveland, No. W2004-02892-

CCA-R3-CD, 2005 WL 1707975, at *3 (Tenn. Crim. App. July 21, 2005) (“When the 

conjunctive conjunction “and” is used, each element so linked in the statute must be 
- 9 -

considered jointly to obtained the objectives of the statute”). In the present case, we find

that there is insufficient evidence to prove that Defendant was driving at an unsafe speed, 

one of the elements required to prove failing to exercise due care. Trooper Williams was 

not present at the time of the accident and was only a witness the events following the 

wreck itself. Furthermore, the State has failed to put on any proof of the speed Defendant 

was traveling when his car wrecked. Therefore, the evidence presented was insufficient 

for a trier of fact to find Defendant guilty of failure to exercise due care. Defendant is 

entitled to relief on this claim. 

CONCLUSION 

Based upon the foregoing analysis, we affirm Defendant’s conviction of driving 

under the influence, but reverse the trial court’s holding that Defendant was failing to 

exercise due care, and dismiss that count of the indictment with prejudice.

____________________________________________

THOMAS T. WOODALL, JUDGE