### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 14, 2001 Session STATE OF TENNESSEE v. STEVEN T. WALL Appeal from the Circuit Court for Montgomery County No. 38949 John H. Gasaway, III, Judge

No. M2000-01059-CCA-R3-CD - Filed April 16, 2001

The defendant was conv icted by a M ontgomery County jury of driving under the influence of an intoxicant (DUI) and vehicular assault. In this appeal as of right, the defendant raises two issues for our review: (1) whether the

evidence was sufficient to support his convictions; and (2) whether both convictions can stand without violating his right to be protected against double jeopardy. Having reviewed the entire record, we conclude that the evidence is sufficient to support convictions for DUI andvehicular assault, but that both convictions cannot stand without violating principles of doub le jeo pard y. The conviction for DUI is, therefore, vacated. The rema ining conviction for ve hicular assault and the sentence imposed by the trial court are affirmed. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part, Vacated in Part A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Gregory D. Smith, Clarksville

, Tennessee, for

the appellant, Ste

ven T. Wall. Paul G. Summers, Attorney General and Rep

orter; Elizabeth T . Ryan, Assist ant Attorney

General; John Wesley Carney, Jr., District Attorney Gener al; and James B. Crenshaw, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION The defendant, Steven T. Wall, was convicted by a Montgomery County jury of vehicular assault, a C lass D felony , and driving unde r the influence (

DUI), first o

ffense, a Class A misdemeanor. The defendan t was senten ced to four years as a Range I, sta ndard offender for vehicular ass aul t an d el even mon ths and twe nty- nin e days for DUI, with the terms to be served con curr ent ly. The jury assessed fines of $3,00 0 and $ 750 re spect ively. In this appeal as of right, the defendant presents two issues for our review:-2- I. Whether

the evidence wa

s sufficient to

support his convictions; and II. Whether

double jeopardy principles

prohibit his being convicted of both offenses. Having reviewed the entire record, we conclude that the evidence is sufficient to support convictions for DUI and vehicular assault but that both convictions cannot stand. T he conviction for DUI, a lesser-included offense of vehicular assault, is vacate d, and the conviction for

vehicular assault is affirmed. FACTS John LaRocca, a man in his early thirties at the time of the offens e and the victim in this case, owned and operated

Motor Town Muffler

in Dickson, Tennessee. LaRocca lived with his wife in Cla rksville, Tennessee. The defendant, also in his early thirties, operated hea vy equipmen

t fo r his father’s construction comp any in Clarksville. The d

efendant lived w

ith his wife in Cunning

ham, south of Clarksville. Both men travele d Highway

48 to and from work

each day, though in opposite directions. On Friday, December 13, 1996, LaRocca had left his business in Dickson around 3:00 p.m., checked on a boat that was being repaired in White Bluff, and then headed north on Hig hway 48 on his daily trip home to Clarksville. The defendant had sp

ent the day ope

rating a backh

oe at a work site w

ith two coworkers , Timmy Jon es and Louis G

ibson. Because

he had left his 1993

white Chevrolet pi

ckup truck at a Clarksville

car wash, his coworker s dr ove him to get his truck slightly before 5:00 p.m. The defendant then headed south on Highway 48 toward home. He

spoke to his wife on

his mobile phone around the time he reached the bridge crossing the Cumberland River. After a quick stop at the Triangle Market, where the defendant recalled picking up two pac kages of cigarettes, he continueddown the two-lane highway. He was within some thre

e miles of home whe

n he apparently decided to pass two cars driving in front o f him. Ahead was a

hill; the highway

was marked with a double yellow

line; on the right was Montgomery Central Elementary School where an after-school activity was underway. It was not possible to see if another vehicle was approaching from the other side, headed north towa

rd Clarksvil

le. On this Friday, at about 5:15 p.m., another vehicle was coming up over th

e hill; it was a blac

k and tan 1989 Silver

ado pickup truck d

riven by the

victim. Cynthia Moseley testified that

on Friday, December

13, 1996, she was dr

iving her usual r

oute home fro m he r jo b oftwe nty- sev en yea rs a s su perv iso r ofacco unt s pa yabl e at Aus tin Pea y S tat e Uni vers ity. She was headed south on Highway 48 toward her home

in Cunningham. She testified to the following se

quence of event

s:1 Montgomery County High School is located slightly nort h of Mont gomery C entral Elem entary Scho ol, therefore,

the witness, tr

aveling south on Highway 48, passed the high sch ool just before ge tting to the eleme ntary schoo l. -3- A. Well, yes sir.

I stopped at th

e high school. 1 A car in front of me was turning and

as I was getting up my

speed to come up th

e little hill there, I noticed i n my side mirror that there was a vehicle coming around me. Q. Do you kno

w what kind of vehi

cle that was? A. Not at that time, no. Q. How far was that vehicle behind you? A. Well, I really

c an’t determine. I don’t know how to determine how close he was, but I knew that he was coming arou

nd me because I could see the lig

hts in my side mirror and

there were other vehicles behindme so apparently, you know, he was passing others as well as me. Q. So there was a line of vehicles behind you? A. Yes , si r. O r -- I wou ldn ’t s ay there was a line, but I know there was a vehicle behind me. Q. Okay, and you saw those hea dlights coming up beside you? A. Yes. I kne

w that it was not the c

ar behind me, thei

r lights. Q. So there was at le

ast one vehicle

further behind you

and then this person that was passin g? A. Yes.

. . . . Q. What happened as that vehicle got up beside you? A. When he was right beside me, there was another vehicle coming and they hit head on.2 The record is un clear as to whether T immy Jone s was still riding with Louis Gibson. Jon es was not a witness

at the trial. -4- Randy Rob ins on, a Ten nes see s tat e tr oop er, t est ifi ed t hat at a ppr oxi mat ely 5 :20 p.m . on December

13, 1996, he received

a dispatch concerning an accident on Highway 48 and 13 in front of Montgomery Central Elementary School. He arrived at the scene at 5:40 p.m. Trooper

Robinson testified that Highway

48 is a two-lane, a

sphalt road. He sa

id that the defend

ant was inside th

e ambulance when he arrived on the scene, and he entered the ambulance to talk to the defendant. He noticeda strong smell of alcohol about the defendant. He asked the def endant if he was operating the vehicle involved

in the collision, and the defendant stated that he was. Trooper Robinson was unable to get any

other information

because the def

endant was being

treate d for hi s injuries. Sub seq uen tly, the defendant was airlifted to Vanderbi lt Univer sity Medical Center in Nashville. Trooper Rob ins on t est ifi ed t hat whi le h e was sur veyi ng the sce ne of the accident, he checked the white pickup tru ck that the defendant ad mitted he w as driving. Trooper Robinson noted a smell of alcoholic bever

age in the cab o

f the truck as we

ll. Thomas Aldridge, a medical technologist for sixteen years at Vanderbilt University Medical Center, testified that

on December 13, 1996, he performed a serum ethanol level blood test on the defendant. A qua

lity control t

est was run to

make sure that ev

erything w

as working prop

erly with the kit mad e by A bbo tt D iagn ost ic La bor ato rie s an d reg ula rly u sed at V and erbi lt t o te st f or et hyl alcohol in the blood. Aldridge t esti fied that the blood ethanol level for the defendant was .194%. Aldridge testified that the test h e ran o n the defendant’s blood was generally acce pted in the scientific communit y as reliable fo r determini ng ethyl alcoho l content o f the blood . The disch arge summary from Vanderbilt Hospital for the d efendant, admitted on December 13, 1996, and discharged o n December 16 , 1996, sta ted the fol lowing:

PRINCIPAL

DIAGNOSI

S: Mandibular fracture SECONDARY DIA

GNOSES: 1. Concussion.

2

. Tertia ry alcohol intoxication

. LouisGibson testified as a witness for the defense, stating that he wo rked the same job s

ite as the defendant all day

on the day of the collision. Gibson operated the bulldozer clearing a lot, and the defendant oper

ated the backhoe. Gibson testif ied that the defendant did not consume any alcoholic beverages that day, including during lunch. G ibson and another cow

orker, Timmy

Jones, drove the defendant to p

ick up his truck from the car wash at the end of the work day, and then Gibson and Jones left town, traveling south on the same highway as the defendant. Gibson testified that he andJones pulled into the T riangle Market on Highw

ay 48 as the

defendant was c

oming out. Gibson cou ld not reme mber if the d efendant was carrying anything. The three men spokebri efl y, andthe defendant le

ft to continue his route

home. Gibson testif

ied that he did not sm

ell any alcohol on the defendant. Gibson arrived at the scen e of the collision right after it happened. 2 Gibson testifiedthat the defendant was unconscious a

nd would not respon

d to anything G

ibson said to him.-5-

He testified that he stuck his head in the window on the driver’s side of the defendant’s truck and did not smell any alcohol. On cross-examination, Gibson testified that he had worked for the defendant and the defendant’s father, Bobby Wall, for approximately three yearsand was an employee on the date of the collision. Gibson testified that he is now o perating his own business. The defendant’s wife testified that Gibson is her brother-in-law. Charles Daniel Spritz testif ied that he occas

ionally serviced the equipment

owned by Bobby Wall Co nstruction. On Friday, December 13, 1996, he received a page from the defendant concerninga bulldozer that ha d a mechanical problem. Spritz met the defendant at the company office at about 4:30 p.m. and talked for ten or twenty min

utes. Spritz testifie

d that he did not smel

l any alcohol on the defendant. Spritz checked on the bulldozer and then left about five minutes after the defendant. Spritz was also travel ing south out of Clarksville on the same highway as the defendant. Spritz testified that he arrived at the scene right after the collision. He went over to the defendant’s truck and observed that the defendant was not making any sounds. Spritz also testified that he did not detect the odor of alcohol in the truck. Add iti ona lly, the defendant’s wife testified that she detected no signs of alcohol consumption in the defendant’s voice when he spoke with her shortly before he stopped at the T riangle Market on his way home . She noted that the family had p

lans toleave immediately after her husband got home to spe nd the weeke nd vacation ing in Gatli nburg. Jam es Kraus testified that in December of 1996 he was working for Bobby Wall Construction as a “punchlist man,” or a gene ral repair man . Kr aus was dri vin g hom e fro m wo rk o n Fri day, December

13, 1996. His route was the same as that of the defendant, Mr. Gibson, an d Mr. Sprit

z: south on Highway 48 to Cunningham, Tennessee. Kraus testified that as he came up on the collision, Danny Spritz, who appare

ntly recognized the company truck Kraus was driving, waved and yelled at him to come over to where Spritz was standing. Kraus testified that Spritz then told him that the defendant had be en in a bad ac cident and asked Kraus if he had a phone to call the defendant’s fam ily. Kraus testified

that both drivers appeared unconscious to him, though he stayed a distance away from the vehicles. Kraus testified further tha t he d id not notice any intoxicants around the scene of the collision. The defendant testified

on his own behalf and denied that he had consumed any alcohol on the day of the collision. He was unable to offer any explanation for the testimony of Trooper Robinson concerning the odor of alcohol on his person and in the cab of his truck, or his blood alcohol level reported by Vanderbilt Hospital.-6- ANALYSIS Issue I. Sufficiency of the Evidence The defendant cont ends that the evidence was insufficient to support convictions for DUI and vehicular assault. Essentia

lly, the def

endant asserts th

at the te stimon y of his four witnesses, each of whom testified that there were no signs that he had consumed alcohol on the day of the collision, was overwhelming and in

direct contradiction of Trooper Robinson’s testimony. The State contends that the evidence

is sufficient. On appeal, the State

is entitled to the str

ongest legitima

te view of th

e eviden ce and all reasonable

inferences that might be drawn from the evi dence. See State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). “[T]he weight and credibility of testimony of a witn ess, and the reconciliation o

f conflicts in test

imony are ma

tters entrusted e

xclusively

to the jury as the triersof fact.” Byrge v . State , 575 S.W.2d 29 2, 295 (Tenn . Crim. App . 1978) (cit ing Withers v. State , 523 S.W.2d 364 (Tenn. Crim. App. 1975)). In a criminal action, a conviction may be set aside only when the reviewing court finds that the “evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e); see also Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L . Ed. 2 d 560 (1979) (concluding that courts reviewing su f ficiency of evidence must d

etermine “wheth

er, after viewi

ng 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 reas onable doubt”). A jury verdict, approved by the trial judge, accredits the witnesses for the State and r esolves any

conflicts i

n the testimony in favor of the State. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978) (citations omitted). A. Driving Under the Influence The DUI statut e states, i n pertinent part, the fo llowing:

Driving under the influence of intoxicant, drug or dru g producing

stimulant pro hibi ted — Alcohol conce ntration in blood or breath. —

(a) It is unlawful for any person to drive or to be in physical control of any automobile or other moto r driven vehicle on any of the

public roads and highways of the state, or on any str

eets or alleys, or w

hileon the premises of any shopping center, trailer park or any apartm

e nt house complex, or any other premises wh

ich is generally frequented by

the public at large, while: (1) Under the in

flue nce of any

intoxicant, marijua

na, narcotic drug, or drug producing stimulat ing effects on the central nervous system; or3 The defendant wasalso indict ed according to Tennessee Code Annotated Section 55-10-401(a)(1) in Count Two. At the sentencing hearing, the trial court clari fied the discrepancy between the indictment and the jury verdict form in the following: THE COU RT: Y ou’re corre ct. This always p resents a little bit of confusio n. The

DUI was alleged u nder two d ifferent t he ories. And, so , actually, I think wha t I really did was I basical ly mergedCounts One an d Two, permitted the jury to make a decision co ncerni ng the way th e offense was committed, if at all, and then vehicular

assault, which was Count Thre e was t hen numb ered Count Two on the verdic t for m. So, despite the inconsistency between t he count s as refl ected on the ind ictment and the co unt numbe rs as reflected in the verdict for m, Mr. Wall wa s convicted of DUI a nd he was c onvicted o f vehicular assa ult. -7- (2) The alcohol concentration in such person’s blood or b reath is ten-hundredths of one percent (.10%) or more. Tenn. Code Ann. § 55-10-401 (1998). The defendant was indicted in Count 1 for violation of § 55- 10-401(a)(2) and convicted of that count, basedon evidence of an alcohol level of nearly twice that established by law as constituting a DUI offe nse, or .194%. 3 The evidence at trial showed that Trooper Robinson, who report ed within minutes to the scene, spoke to the defendant while he was sitting up in the ambulance prior to be ing airlifte

d to Vanderbilt

Hospital. Robins on, a nine teen-year veteran state trooper at the time of the of fense, testifiedthat in the preceding year alone he had made eighty-seven

arrests for DUI

and had probably investigated

thousands of DUIs over the course of his career. Trooper Rob inson testified that he noticeda strong smell of alcoholabout the defendant and a sked him if he was o

perating the ve

hicle in the collision, and the defendant acknowledged that he was. Trooper Robinson also testified that there was a smell of alcohol in the cab of the defendant’struck. Additionally, the report on the blood alcohol test performed at Vanderbilt Hospital revealed a blood alcohol level well above the legal limit. Although the defendant sought to discredit this evidence with various theories, including that the blood tested was not

really his, there was absolutely no cr edible evidence to refute the testimony of Thomas Aldridg

e, medical techn

ologist at Vande

rbilt Hospital. We conclude that the evidence was sufficient to support the de fenda nt’s c onvic tion for DU I. This issue is without m

erit. B. Vehicular Assault The vehicul ar assault s tatute sta tes, in per tinent par t, the foll owing: A person commits vehicular assault who, as the proximate re sult of the person’s i

nt oxication as set forth in § 55-10-401, recklessly causes serious bod ily i nju ry t o an other person by the operation of a motor vehicle

. For the purposes of this section, “intoxication” includes-8- alcohol intoxication as defined by § 55-10-408, drug intoxication, or both. Tenn. Code Ann. § 39-13-106(a). As to the eleme

nt s of the offense of vehicular assault, we have determined above that the evidenceis sufficient to support a conviction for DUI and, therefore, can

conclude that the defendant was intoxicated, that is, that the concentration of alcohol in his blood was .10% or more, at the time of the collision on December 13, 1996. There is no questionthat the defendant was operating the white Chevrolet truck, a motor vehicle. As to the element of r

ecklessness,

with respect to the circumstances surrounding the conduct or the result of the c ondu ct, recklessness is proven beyond a reasonable doubt when the evide nce shows that the person “i

s aware of but con

sciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard c

onstitutes a gros s deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint[.]” Tenn. Code Ann. § 39-11-106(a)(31). Here, the defendant, having consumed suffici ent alco hol to register a blood al cohol level of .19 4%, attempted to pa

ss at least two vehi

cles, on a hill, on a

two-la n e high way, in an elementary school zone marked with a double y ellow line, while una ble to see oncoming traffic, at near-dark, and while an after-school f

unction was taking

place. Reckless

ness was proven bey

ond a reasonable

doubt. As to the element of c

ausing serious b

odily injury

, the law defines

such injury a

s bodily injury that in

volves: (A) A substantial risk of death; (B) Protracted

unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted

loss or substantial impairment of a function of a bodily mem ber, orga n or men tal facu lty. Tenn. Code Ann. § 39-11-106(a)(34). The victim testified to the following injuries as a result of the collision: A. I received two disc - - messed up my nec k, number four

andfive. Brokennose, crushed sin uses, my right eye laid wide open. I got a hematoma

in the back of my head, I still got a bal d spo t in the back-9- of my head. I hav

e four screws in my left hip. I have a rod i

n my femur bone where my femur shattered, just completely shattered in about five different parts. My right foot, I have nine screws, two pins anda co up le of plates in it. Th ey took one p

in out last ye

ar and hit the nerve. And them

my left foot, they got another sc rew in it and a big staple that kind of

keeps it in place. And my brain was bleeding on both sides, and I’m here talking to you. Q. Was there a period of time wh en y ou couldn’t walk after the accident? A. Yes, fo

r about thr

ee months I

was in a wh

eel chair [sic]. The victim also testified that, thus far, he has had at least eight surgeries associated with his injuries. At the time of the tria

l, the victim

was able to walk, but very slowly and ofte n with the use of

a cane. He is not able to “run or jump.” The victim testified that he did try to work:

A. Idid try to work for about two weeks pumping gas. To me that was the easiest thing in the world, but I lasted on ly about two w

eeks, about five hours a day and I had a stroke the second

week. My mind wants to do it, but my body is not going to let me

do it. And they

told me there not to try to push myself. Serious injury was proven beyond a re asonable doubt. We conclude that the evidence was sufficient to convict the def

endant of vehicu

lar assault. This issue is without m

erit. Issue II. Double Jeopa rdy The defendant arg

ues, and the State

agrees, that he cannot be convicted of both DUI and ve h icular assault without viol

ating his constitu

tional protection a

gainst double jeo

pardy. On th

is issue, the law is clearly on the side of the defendant. This court concluded in Statev. Rhodes , 917 S.W.2d 708 (Tenn. Crim. App. 1995), that the “legislature intended for vehicular assault to include DUI as a lesser inclu

ded offense. Thu

s, for double jeopardy

purposes, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence that causes serious bodily injury.” Id. at 712-13. In Rhodes , we held that the trial court erred when determining that the defendant’s dri

ving his car fro

m the workplace to

the location of the accident was a different DUI offense than the one necessary to sustain the vehicular assault offense. See id. at 713. The record in Rhodes showed evidence of a single DUI offense that resulted in the collision and caused serious bodily injury to the victim. See id. This court held that “the def

endant could

only be punished for one offense and the trialcourt should have entered only the judgment of conviction for the vehicular assault offense.” Id. at 714.-10-

Here, as in Rhodes , one episode of driving under the influence of alcohol recklessly cause d serious bodily injury to the victim. There fore, we con clude that b oth co nvict ions c annot stand . In this case, the conviction for the lesser-included offense of DUI is vaca ted. CONCLUSION Although we have concluded that the evidence is sufficient to sup

port convictions f

or both DUI and vehicular a

ssault, we also co

nclude, in confor

mance with the law

in this st at e, that both convictions cannot stand. The separate judgment of conviction for DUI is vacated. The remaining conviction for vehicular assault and the sentence imposed by the trial court ar e affirmed.

___________________________________ ALAN E. GLENN, JUDGE