# FILED
March 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9703-CC-0 0081 ) ) Grundy County v. ) ) Thomas W . Graham, Judge ) ) (DUI, Reckless Dr iving, ) and Resisting Arrest ) WANDA KAY ZAID, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Sherry D. Gouger John Knox Walkup Assistant Public Defender Attorney General & Repor ter P.O. Box 220 425 Fifth Avenue, North Jasper, TN 37347-3427 Nashville, TN 37343-0493 OF COUNSEL: Clinton J. Morgan Counsel for the State Phillip A. Condra 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 P.O. Box 220 Jasper, TN 37347-3427 J. Michael Taylor District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Thomas D. Hembree Assistant District A

ttorney General P.O. Box 130 Jasper, TN 37347-0130

OPINION FILED:_______________________________ AFFIRMED IN PART, REVERSED IN PART Joe B. Jones, Pre siding Judge1 The trial court grant ed split co nfinement. In addition to spending time in confinement in the Grund y County Jai l, the def endant m ust serve a period of probation in each case. 2 

## O P I N I O N

The appellant, Wanda Ka y Zaid (defendant), was convicted of driving

while under the influence, a Class A misdemeanor, reckless dri ving, a C lass B misdemeanor, and
res isting arrest, also a Class B misdemeanor, by a jury of her peers. The trial c our t imposed the following sentences: (a) driving whileunder the influence, a fine of $350 and confinement for fifteen (15) days, (b) r eckless driving,a fine of $5 0 and confinement for fifteen (15) days, and (c) resisting arrest, a fine of $100 and confinemen t for five (5) days. 1 The court ordered the defendant to serv e the sentenc es for dr iving while unde r the influence and reckless driving concurrently, but ordered these sentence s t o be served consecutivelyto the sentence for resisting arrest. While the defendant presents five issues forreview, these is

sues may be consolidated int o three issues. The defendant contends (a) the evidence contained in the record is insufficient, as a matter of law , to support her convictions, (b) the indictment for resi sting arrest does not st ate a crime, a nd (c) the sentences imposed by the trial court ar e excessive. After a thorough review of the record, the briefs submitted by the parties, and the law gov erning theissues presented for review, it is the opinion of this court that thejudgments of the trial court for driving whi le under the influence and resistin g arr est should be affirmed, and the judgment for reckless drivin g should be reversed andthe prosecution dismissed as the evidence is insufficient to support the conviction. On the evening of August 1 9 , 1995, Sergeant William S. Hollow ay, a law enforcem ent officer with the Gruetli-Laager Police Department, received a radio communication regarding a gray Dodge pickup truck. While patrolling on Highway 108, he followed a gray Dodge pick up truck to the Gruetli-L aager Dairy Bar. He p ulled in to the parking lot, exited

his patrol car, and went inside the Dairy Bar. The driver of the Dodge pickup truck placed an order at the drive-through window. The pickup truck left the Dairy Bar before obtaining the order. S ergeantHolloway heard the sound of rubber caused by the spi nning of tires o n3

pavement. He noticed the gray Dodge pickup was the vehicle spinning its tires as it reentered Highway 108. He activated his emerg ency lights and siren as he attempted to stop the pickup. He noticed the pickup w as exceeding the speed li mit. The driver of the pickup turned into a pr

ivate d rivew

ay appr oximat ely one-tenth o

f a mile north of the Dairy Bar. Sergeant Holloway followed the pickup until it sto pped near a residence approxim ately for ty feet f rom the h ighway. The defendant was behind the steering wheel. She exited the pickup truck on the drive r’s side and walked toward Ser geant Holloway’s

patrol car. Sergeant H olloway noticed the defendant was unsteady on her feet. He asked the defendant for her driver’s license, and the defendant produced a driver’s license. She became argumentati ve and demanded to know why Serg eant Holloway stopped her. A strong odor of an intoxicating beverage was detected by Officer Dycus, w ho arrived a short time after Sergeant Holloway stopped the defendant. Sergeant Hollow ay asked the defendant how much she had had to drin k. The defendant told him “she had a fe w,” but she did not state what she drank. It was the of ficer’s o pinion th e defen dant was u nder the influen ce. He gave the defendant field sobriety tests, w

hich she failed. He placed the defendant under arrest. When Sergeant Holloway att empted to handcuff the defendant, she pulled away from him. Subsequently, Serge ant Holloway w

as able to place the handcuffs on one wrist, but the defendant continued to pull away so he could not place the handcuffs on the other wrist. Finally, Officer

Dycus assisted Sergeant Holloway so he c ould complete handcuffing the defendant. Sergeant Hollow ayt estified they “scuffled just a little bit” before the procedure could be completed. The defendant demanded a blood alcohol test as opposed to a chemical breath test. A medical doctor was cal led to the jail. He attempted to draw theblood, butthe defendant would not let him stick the needle in her arm. She told the doctor she w oul d insert the needle herself and draw the blood. The doctor advised the defendant he had to draw the blood. He attempted totake blood three times, and she refused three times. The doctor then left the jail. The defendant presented onewitness in support of her defense, Deborah Anderson Walston, who lived in the residenc e at the end of the driveway

. She testified she and the4

defendant were close friends. They had known each other since childhood. Walston stated the pickup truck was owned by a cousin, Leonard Kilgor e. Kilgore, who was intoxicated, s aid Walston could drive his truck. She claimed to be drivi ng the pickup truck, an d said the defend ant was on ly a passenger in the pickup. According to Walston, the defendant could not perform the field sobriety tests because she had a bone disease. Walston denied the def endant drank a ny intoxicating bevera ge s th at day. Walston claimed she spun the tires because she wa s not accustomed to a big ve hicle and because it had rained and the “r oads were still a l ittle bit slippery. ” The State of Tennessee introduced evid ence establ i shing Walston was very aggravatedand argumentative whi le Sergeant Holloway was

conducting his inves

tigation. One of the officers told Walston if she did not calm hersel f, she would be arrested. H er brother accompanied her insi de the residence.

I.

The defendant contends the evid ence contained in the record is insufficient, as a matter of law, to support a finding by a rational t rier of fact that (a) she w as driving the pickup truck on the night in question, (b) she drov e the pickuptruck recklessly , and (c) she resisted arrest. Therefore, this court must address the law gov erning appellate

review in criminal prosecutions.

A.

When an accused challenges the s ufficiency of the evidence, thi s court must review the record to determine if the ev idence adduced at trial is sufficient“to support the finding bythe trier

of fact of guilt beyond a reasonable doubt.” Tenn. R. App . P. 13(e). This rule is applicable to findings of gui lt based upon direct evidence, ci rcumstantial evidence, or a combination of direct and circumstantial evi dence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied , (Tenn. 1990). In determining the sufficiency of the convicting evi dence, this court does n ot reweigh5

or reevaluate the evidenc e. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn bythe trier of fact from circumstantial eviden ce. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L .Ed.2d 49 (1956). To the
co ntrary, this court is requi red to afford the State of Tennessee the strong est leg itimat e view of the evidence co n tained in the record as w ell as all reasonable and l egitimate inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credib ility o f the witnesses, the wei ght and value to be given the evidence, as well as all factual issues rai sed by the evidence are r esolved by

the trier of fact, not this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our supreme cour t said: “A guilty verdict by the jury, approved by the trial judge , accredi ts the tes timony of the witnes ses for the State and resolves all conflicts in favor of the theory of the State.” Since a verdict of

guilt removes the presumption of innoc ence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Te nn. 1982). T his court will not disturb a verdict of guilt due to the sufficien cy of the evid ence unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

Before an accused can be convicted of driving a motor v

ehicle while under the influence, the State of T ennessee is requ ired to p rove beyond a reasonable doubt the accused (a) drove a motor v ehicle, (b) on a pu blic roadway , and (c) was under the influence of an intoxicant or narcoti c drug. Tenn. Code Ann. § 55-10- 401. Like an y offense, the State of Tennessee may establish the se elem ents of the offense by direct evidence, circumstantial evidence, or a combination of direct and circumstantialevidence.6 In this case, S ergeant Holloway testified the defendant was behind the steering wheel when the pick up truck cam e to a stop. The defendant exited the pickup truck through the driver’s side door. She also demanded that Serg eant Holloway ex plain to her why she had been stopped. Consequently, there is sufficient evidence to support a finding by a rational trier of fact the defendant w as the driver of

the pickup beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 278, 61 L.E d.2d 560 (1979). C.

Before an accused can be convicted of resisting arrest in the context of this case, the state is required to pr ove beyond a reasonable doubt (a) the accused knew the person a tte mpting to arrest her was a l aw enforcement officer; (b) the defendant attempted to prevent or obstruct the arrest; (c) the defendant used force; and (d) the de fendant’s conduct was intentional. Tenn. Co de Ann. § 39-16-602(a). The state established eac h ele ment of this offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , supra . The defendant knew Sergeant Holl oway was a polic e officer. Before the pickup driven by the defendant came to a stop, Sergeant Holloway activated the emergency light s on top of the patrol car and sounded his sir en. He was dressed in a police officer’s uniform. Moreover, every one presentknew Officer Dycus, w ho arrived to assist Sergeant Holloway, and they were aware he was a police officer. The defendant intentionally attempted t o prevent Sergeant Holl oway from arresting her. When Sergeant Holloway told the defendant she wasbeing arrested, he attempted to handcuff the d efendant. She made every effort to pull away to prevent bei ng handcuffed. Sergeant Holloway was a ble to pla ce the ha ndcuff s on one wr ist. The defendant continu ed to pull away. Officer Dycus assisted Sergeant Holloway in handcuffing the defendant. Sergean t Ho lloway testified he, O fficer Dycus, and the defendant “scuffled just a little bit” before the handcuf fing procedure could be completed.7 D.

Before an accused can be convicted of r eckless driving in the context of this case, the state must prove beyond a r easonable doubt the accused (a) drove a motor vehicle and (b) did so in willful a nd wanton disregard for the s afety of persons o r propert y. Tenn. Code Ann. § 55-10-205(a). The state failed to establish bey ond a reasonable doubt the defendant drove the pickup truck in willful and wanton disregard for the sa fety of other persons o r propert y. The only facts in evidence which could conceivably constitute reckless dr iving were (a) pulling away from the driveway of the dai ry bar and spinning the tires on the truck and (b) driving the vehi cle at a high s peed. The distance between the dairy bar and the driveway the pi ckup truck entered was one-tenth of a mile. The record reflects the driv eway of thedairy bar is gravel. There was evidence the pavementwas wet. The e vi dence regarding the sq uealing of tires came from Serg eant Holloway. He stated the pickup truck “spun its tires in a reckless manner.” He further testified the tires were spun on the pavement of the highway as the pickup left the dairy bar d riveway. The recor d is devoid of eviden ce explain ing why the ti res we re spun “in a reckless manner.” This court can envision the spinning of the tires being caused by loose gravel lying on the highway or th e dampn ess of th e roadway. On the other hand, this act could ha ve resulte d from th e speed o f the veh icle as it le ft the dr iveway. Sergeant

Holloway testified the truck was trav eling at “a rather

high rateof speed.” However, Sergeant Holloway testified “I’m not really sur e how fast that we got befor e the vehicle ran into a

privatedriveway.” He admitted he did not look at the speedometer while he was pursuing the pickup truck. The record is devoid of ev idence regarding the

topography of the

highway between the driveway and the private drive. Nor is there any evidence regarding the presence of other vehicles on the highw

ayat the time in question. Sergeant Holloway did not mention any erratic driving. Applying the rulesgoverning a ppellat e review, this court is of the opinion the state fail ed to es tablish that the defendant was g uilty of reckless dri ving. State v. Ronald8

Mitchell , Lauderdale County No. 02-C-01-9702-CC-00070, 1997 WL 567913 (Tenn. Cri m. App., Jackson, Se ptembe r 15, 1997); State v. Ronnie L. Hollie , Shelby County No. 13, 1988 WL 23572 (Tenn. Crim. Ap p., Jackson, March 16, 1988). Therefore, this conviction is reversed and the pros ecution is dismissed.

II.

The defenda nt contends the indictment in thi s case fails to state the cri me of resisting arrest. She argues the indictment does not allege she knew Ser geant Holloway
was a law enforce ment officer. In the alternativ e, she argues the crime cha rged was an “attemptto obstruct justice,” a lesser includedoffense of resisting or obstructing an officer. T h e State of Tennessee, citing Tenn. Code Ann. § 40-13-202 and State v. Byrd , 820 S.W.2d 739 (Tenn. 1991), simply st ates, “Count III adequately informed Defendant ofthe charge against her, and therefore it is a valid indictment.”

A.

The record does not contain a motion to dismi ss Count III of the indictment prior to trial. As a general rule, the defendant must challenge a defect in an indictment prior to trial pursuant to Rule 12, Tennessee Rules of Criminal Procedure. If the defendant fa ils to raise the defect prior to trial, the defendant waives the issue. Tenn. R. Crim. P. 12(f). However, Rule 12(b)(2) prov ides that the defendant may challenge anindictment “at any time during the pendency of the proceedings” if the indictment (a) fails to establish the trial court had jurisdiction to enterta in the prosecution or (b) fails to state a

crime. Moreover, Rule 52(b), Tennessee Rules of Cri minal Procedure, provid es that “[a]n error w hich has affected the substantial rights of an ac cused may be noticed at any time, even though not raised in the motion for a new tri al or assigned as err or on appeal, in the discretion of the appellate court.” See State v. Adkisson , 899 S.W.2d 626, 639-40 (Tenn.Crim. App. 1994). The record reflects

the defendant did not raise this i ssue in the motion for a new tria l. Ord inarily, this omission results in the waiver of the issue. Tenn. R. App. P. 3(e).9

Nevertheless, this court can consider the issue within the exerci se of its discretion. Tenn. R. Crim. P. 52(b); Tenn. R . App. P. 13(b). See Adkisson , supra .

B.

Count III of the indictment states in part:
The Grand Jurors of Grundy C ounty, Tennessee , dul y impaneled and sworn upon their oath, present that: WANDA KAY ZA

ID on the 19th day of August, 19 95, in Grundy County , Tennessee, and before the fin ding of this Indictment, did unlawfully and intentionally attempt to obstruct one WILLIA M G. HOL LOW AY , a Law Enforcement Officer, from effecting an arrest of one WANDA KAY ZA

ID , by using force against the said WIL LIAM S. H OLL OWAY in violation of T.C .A. 39-16-602 , all of which is against the peace and di gnity of the State of Tennessee. This court is of the opinion Cou nt III alleged the offense of resisti ng arrest. As previously noted,the elements of resisting an arrest in the context of this case
are: (a) the defendant knew Serg eant Holloway, the per son attempting to arrest her, was a law enforcement officer, (b) the defendant att empted to prevent or obstruct Sergeant Holloway from arresting her, (c) the defendant used force against Sergeant Holloway, and (d) the defendant’s conduct was int entiona l. Tenn. C ode Ann. § 39-16-602(a). These elements are present either ex pressly or implici

tly in this count of the i ndictment. This issue is without merit.

III.

The defendant contends thetrial court failed to compl y with the requi rements of the Tennes see Criminal Sentencing R eform Act of 1989 when imposing se ntence for thes e offenses. The defendant argues the tria l court fail ed to state its re asons for impo sing a sentence in excess of the mandatory minimum sentence for driving while under the influence, and the trial court did not consider the purposes and considerations set forth in the Act.10 When an accused challenges the l ength ofthe sentences imposed by the tr ial court, it is the duty of this court to conduct a de novo review on the recor d with a presumptionthat “the determin ations m ade by t he trial c ourt from which the appeal is taken are correct.” Tenn. Code Ann .§ 40-35 -401(d). This pres umption is “condit ioned up on the af firmati ve showing in the record that the trial court considered the sentencing principles and all relevant facts and circ umstances.” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). In this case, there is no i ndication on the face of the record the trial court considered the sentencing principles. Therefore, this court’s review is de novo without a presumption of correctness. This c ourt has considered the sentencing principles and all relevant facts an d circumstances

contained in the record. There are two enhancement factors present.First, the defendant has been convicted of two prior misdemeanor offen ses, public drunkenness and failing to stop in obedience to a stop s ign. Tenn. Code Ann. § 40-35-114(1). These
are significant because the defendant was intoxicated while driving the pickup truck, and the running of the stop sign w as a traffic offense. Second, the crime w as committed under circumstances

where the potential for bodily injury to a victim was g reat. Tenn. Code Ann. § 40-35-1 14(16).When a driv er who is under

the infl uenc e of an intoxicant travel s the public r oadways o

f this state,the lives

of other pers

ons are plac

ed in jeopar

dy. Th e decisions of this court are replete with cases where a person driving under the influence killed another person and was conv icted of vehicular homici de. In a ddition, the dockets of this court are continually filled with vehicular homicide cases. Confinementfor more tha n the minimum mandatory is required to avoi d depreciating the seriousness of the offense as well as to deter oth ers who are likely to commit similar offenses. Tenn. Code Ann. § 40-35-103(1)(B) . This court is of the opinion the sentences imposed by the trial cour t are reasonable and should be affirmed.

___ _______________________ _____________

_ JOE B. JONES, PRESID ING JUDGE11

CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ WILLIAM M. BARKER, JUDGE