### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 25, 2001 Session

STATE OF TENNESSEE v. JAM ES WESLEY STROMBE RGH
Direct Appeal from the Criminal Court for Hamilton County

No. 231795 Stephen M. Bevil, Judge

No. E2001-00199-CCA-R3-CD March 22, 2002

A Hamilton County jury found the Defendant guilty of third offense driving under the influence and imposed a

fine of $10,000. The trial court sentenced the Defendant to eleven months and twentynine days’ incarceration, ordere d him to attend an alcohol rehabilitation program, and revoked his license for a period

of five years. In this appeal as of right, the Defendant contests the sufficiency of the convicting evidence and argues that the trial court erred by admitting evidence of his restricted driver’s license. Although we conclude that sufficient evidence

was presented at trial to support the Defendant’s conviction, we conclude that evidence concerning the Defe ndant’s restricted driver’s license was improperly admitted at trial. We therefore r everse the D efendant’s conviction and remand t he case to the tria

l court fo r a new tr ial.
Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Rever sed and Remanded

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.
John C. Cavett, Jr., Chattanooga, Tennessee, for the Appellant, James We sley Strombergh.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney Genera l; William H. Cox, III, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

On August 21, 1999, the Hamilton County Grand Jury charge d the Defendant, James W. S tro mbergh, with third offense driving under the influence (DUI) . Following a bifurcated trial

co nducted on April 19 , 2000, a H amilton Cou nty jury c onvicted

the Defe ndant of t

h e offens e charged and impose d a fine o f $10,000 . The tria l c ourt se ntenced the Defendant to serve eleve n months and twenty-nine days in the Hamilton County Workhouse, ordered him to attend an alcohol rehabilitation program, and revoked his license for a per iod of five years. In this appeal as of right,-2-

the Defendant presents two issues for our review: ( 1) whether sufficient evidence was pr esented at trial to support his conviction, and (2) whether the trial court erred by allowing the State to question the Defendant about his restricted driver’s license. Having reviewed the recor d, we conclude that the trial court improperly admitted evidence concerning the Defendant’s restricted

driver’s license. We ther efore r everse the judgme

nt of the tr

ial cour t and rem and the c ase for a new tri al.

The following evidence was presented at the Defendant’s trial: Detective James Usry of the Hamilton County Sheriff’s Department testified that on August 21, 1999, he was dispatched to an automobile

accident involving two vehicles on Signal Mountain. One of the vehicles was driven by the Defendant, and

the second vehicle was driven by Joy Clark. When De tective Usry arrived, he observed the Defendant “leaning up against” his truck an d “chewing mints.” Detective Usry

re po rted that the Defendant “wouldn’t let a hand leave the truck” and that the Defendant “was steadying himself by the truck at all times.” The detective stated that when he asked the De fendant for h is driver ’s licens e and ve hicle re gistratio n, he notic ed that the Defe ndant wa s moving slo wly and noted “a

strong odo

r of alc ohol.” Ba sed upon th ese obse rvati ons, Detective Usry asked the Defendant

to perfo rm field s obriety te sts. The de tectiv e r eported that the Defendant performed “ very poorly” on the tests and concluded that the Defendant “was impaired . . . to the level where he shouldn’t be driving.”

Detective Usry testified that since the time of the Defendant’s arr est, he had lost his written observations of the Defendant’s field sobriety tests and stated that he wa s “testifying off of . . . a copy of the arrest report.” Howeve r, he re called th at the Defendant had “dif ficulty w ith the test[s].” Usry t es tified tha

t the Def endant r eported no physica

l defec ts or injur

ies at the scene th at would affect his perf ormance on th e tests. Usry also state d that the Defend ant ref

used to ta ke a bre ath alcohol test after the accident.

On cross-e

xaminatio n, Detec tive Usry testifie d that af

te r he place d the Defendant under arrest, the Defe

ndant told him that he had been

drinking. Usry admi

tted that h e did not in clude thi s inform ation in his sworn Affidavit of Complaint, but he claimed that he included it in his notes , which he could n ot locate before trial. In addition, Usry admi

tte d that he fa iled to inc lude in his arrest re port that the Defendant “smelled strongly of intoxicating type beverage ,” although h e maintained that he ha

d also inc luded this informat ion in his misplaced notes made at the time of the arrest. With regard to his fa ilure to inc lude this information in the arrest report, Usry testified, “I probably made a mistake by not mention ing it.” He

also admitted that when making five prior DUI arrests , he had no te d in each arres t report that he had detected the odor of alcohol on e ach of the subjects.

On redirect examination, Detec tive Usry t estified that he does not normally include in an affida vit all of the infor mation that he learns at the scene of the crime. He stated that in each affida vit, he includes only sufficient information to establish probable cause. Usry fur ther testified that although he determined that the Defe ndant wa s not at fa

ult inthe acc ident in thi s case, h e did not includ

e this info rmation in

the aff idavit of a

rrest.-3-

Joy Diane

Clark tes tified tha

t she drov e the othe

r vehicl e involve d in the acc ident with the Defendant on the day of his arrest for DUI. She recalled that when the acc ident occurred, she and her daughter-in-law were returning home fr om a flea market on

Signal Mountain. She stated that she was rounding a curve on the mountain at a speed of approximately fifteen miles per hour when she saw the Defendan t’s truck dri ving towards her in her lane. Clark reported that the De fendant “hadto be going at least 30" miles per hour. She testified, “[W]hen I came a round the curve hewas already there a

nd he had to kind of swerve back, but I closed my eyes[,] . . . put my foot on the brake

. . . and got ready for impact because there was nowhere for me to go, and he ran up on us.” Clark recalled that after the collision, she was “trying to get [herself] back together” and looking for her cellular phone whe

n the Def endant a pproach ed her c ar. She st

ated tha t the Def endant p laced his hands o n the top of her car and said, “Lady, look what you did to my truck, you we re d riving to o fast.” Clark testified that the Defendant’s “skin was very red” and that “there were fumes, an odor, of alcohol.” She specified that “[i]t wasn’t beer , it was liquor . . . [which has] a different odor.”

Clark recalle d that the

Defend ant then w ent back to his truc

k, “hit his truck an d kin d o f kicked it and then . . . got in it.” She stated that although one of the Defendant’s tires had exploded in the accident, the Defendant “bac ked up and . . . wen t forward and . . . backed up and . . . went forwa rd.” Clark testified that she asked her daughter-in-law to stand in front of the Defen dant’ s truck to prevent

the Defendant f

rom leaving the scene. Clark stated that she then called 911, and officers soon arrived at the scene.

On cross-examination, Clark testified that Detective Usry determined tha t the accident

was notthe Defendant’s fault. However, she contested this conclusion. She also stated that her insurance premium ha

d increa sed as a r

esult of th e accid ent.

Martha Strombergh, the Defen dant’s mo ther, te stified th at the De fendant grew up i n Manhattan and pointe d out that h e st ill has a New York accent. She stated that as a child, the Defendant

attended speech therapy and “still mumbles a lot when he gets upset . . . . ” Ms. Strombergh also rep orted tha t approxi mately

twelve years prior to the trial, the Defendant fell from

a three-story building while working. She stated that the Defendant, who sustained serious ba ck and headinjuries in the fall, was in a coma after the acc ident. Ms. Strombergh testified that she took care of her son for two to three years after this accident because he was unable to “stay out of bed long.” She further testified that the Defendant suffers from continued physical proble ms resulting from the work-related

accident and that he also developed emotional problems due to head injuries sustained in the fall. She stated, “[H]e gets upset very easy, a nd . . . he gets ir ritable. . . . [H]is brain was swollen from t

he accident for

a while th

ere and he used to

have an awful lot of troubl e with his head.”

Ms. Strombergh testified that the Defendant was living with her on the date of t he automo

bile accident in this case. She recalled that the Def endant was at home all morning on the day of the accident until approximately 2:30 p.m., when he left the house to go to the drugs tore to pu rchase aspirin for his back

pain and “blood thinner” for his mother. Ms. Strombergh maintained that her

son did not consume any alcohol on the day of the accident. She stated she did not see the Defendant-4-

drinking and that s he did not s mell alcohol on his breath o n August 21, 1999. In addition, she testified that there was no alcohol in their house for him to drink. Howeve r, Ms. Stro mbergh a

lso admitted that her son “drank a little now and then.”

The Defend ant testif

ied on his o wn behal f at tria l. He fir st

verifie d his mother’s testimony that he was injur

ed in a wo rk-rela ted acc ident in Ne

w York City

approximately thirteen years before trial. He testified that he moved to Tennessee following the accide ntso that his mother could take care of him, and he

stated tha

t he still su ffere d from ch ronic pa in resulti ng from the accid ent.

The Defendant testified that on August 21, 1999, he awoke at approximately 5:30 a.m., drank

a pot of coffee, and read the newspa per. The Def

endant r eported that he r emained at his home

until some time after 2:00 p.m., when he left to drive to the drugstore. He stated that his mother was in the same room with him all morning. The Defendant maintained that he consumed no alcohol on the day of the automobile accident, but he reported that he did drink vinega r and water.

The Defendant stated that he could not re call how t h e automobile accident occurred. He testified, “I would say I don’t know how it happened, they just come ar ou nd that curve and next thing I know I g ot whack ed and . . . I don’t r

emember nothing.” The Def

endant r eported that his headhit the back window of his truck during the accident and that he “br uised a rib . . . [and] hit the steering wheel.” He testified, however, that he did not see a doctor about his injuries until a few days after the accident because he “was hurting” and “didn’t want to move.”

The Defendant claimed that after the a ccident which resulted in his arrest, he was “dazed” and had troub le moving b ecause of his injur

ies. He d enied ev er appr

oaching J oy Clark’ s vehicle after the wrec k and cla imed that h

e merely called to Clark fr om his vehi cle to inq

uire if sh e w as alright. T he Defe ndant also denied attempting to leave the scene of the acc ident before police arrived. T he Defendant testified that he refused to take a breath alcohol test after the acc i den t because he saw a man wearing a white shirt with “Police” printed on i t that “[took] the passenger [in Clark’s vehicle] away” from the scene. He stated, “And you knowwhat happens in L.A., New York, I seen it all the time.” When asked whether he told De tective Usry at the scene that he had been drinking, the Defendant replied that he di d not recall making any such statement and stated, “All I know is I didn’t know what was going on.”

On cross-examination, the Defendant stated that on the day of the accide nt, he was driving

on a restricted license that he was inst ructed to use only to drive to and from work. However, he admitted that he was not working at the time of the accident because he did not have a job. When asked whether

he had c ommitted f

raud toobtain the restricted license, the Defendant maintained that he planned to get a job that “didn’t come through” an d stated, “I wanted a restricted license so I could drive [my mother] ba ck and forth to th e doctor s.” Howe

ver, he a lso stated , “If I c an get a restricted license, . . . I’ll say anything, because I don’ t want [my mother] to drive.”

Richard P. Jahn, Jr., an attorney, testified that he had known the Defendant for approximately twenty years. He stated tha

t he m et the Defendant at church in Tennessee before the Defendant-5-

moved to New Yo

rk, wher e he was involved i n a constr uction ac cid ent at work. J ahn stated that after the acc ident, the

Defend ant retu

rned to Te

nnessee to live with

his parents on Signal Mountain. Jahn r eport ed that the Defendant received a monetary settlement after the accident in New Y ork. He testified, “[W]hen [the Defendant] recovere d from this accident, let’s say [he is] not normal emotiona lly, and a ll his friends were coming and trying to borrowmoney from him. . . . [H]e was notable to tell them no, so I was basically hired to be a trustee for his money. . . . [a] nd . . . that . .

. has been my role

to this day.” Jahn stated that he had met with the Defendant at least once a month, butfrequently two to three times a month, for the past twelve years to discuss the Defendant’s money. He testified as follows concerning the Defendant’s emotional state: “What I have observed is that he is much more sensitive than what I’d say a normal person is emotionally and things throw him off emotionally that would not throw off normal people.”

Elish Burchard testified that she was the passenger

in Joy Clark’s car at the time of Clark’s collision with the Defendant. Burchard stated that she had had f our wisdom teeth pulledtwo days prior to the accident and was therefore ta king pain medication at the time of the acci dent. She explainedthat because of this, she could not “rememb er ever

y small littl e detail” a

bout the a ccident

. However, Burchard recalled that after the w reck, the Defend ant emer ged from his truck , walked

to the front end of the truck

to survey the damage to his vehicle, and then “kind of hit his hand on the hood like he was . . . discouraged or a little bit angry or whatever.” She testified tha t the Defendant

was “a little stumbly” when he got out of his truck, stating, “at the time I don’t [sic] know if it was because of the accident or what.” Burchard state d that the Def endant next got back into his truck and “tried to

start it, to

see if it w ould star

t . . . I gue ss , an d [the truck] kind of went forward and come back a

little bit.” She further testified that she thought “maybe right after the accide nt,” the Defendant

approached Clark’s car. Howe ver, she stated that she did not actually see the Defendant approach Clark’s c ar beca

use she w as “diggi ng for the cellphone” to ca

ll the poli ce. She al so testified that she “didn’t get close enough to” the Defend ant to smell alcohol on his person. Finally, Burchard testified that her

fiancé, not a police officer, escor ted her from the scene. She stated that he may have been wearing a t-shirt with a “ Police” logo on it at the time.

I. SUFFICIE

NCY OF THE

EVIDENC E

The Defendant contests the suffici e ncy of the c onvicting evidence. When an accused challenges the sufficiency of the evidence, an appellate court’sstandard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rationa l trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 3 07, 324 (1 979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of gui lt b ased upon direct evidence, circumstantial evidenc e, or a combination of both direct and circumstantial evidence. State v. Pe nderg rass , 13 S.W.3d 389, 392- 93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidenc e, this Court shou ld not re- weigh o r re-evaluate the evidence. State v. Matthe w s , 805 S.W.2d 7 76, 779 (T enn. Crim. App. 1990 ). Nor ma y th is Courtsubstitute its inferences for those drawn by the trier of fact

from the evidence. Stat e v. Buggs ,-6-

995 S.W.2d 102, 1 05 (Tenn . 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956)

. Questions concerning the cre dibi lity of t he wit nesse s, th e weigh t and value of the ev idence, as well a s all factual issues raised by the e viden ce are resolved by

the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well as all reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 1 85, 191 (T enn. 1992 ). Bec ause a ve rdict of g uilt against a defendant

removes the presumption of i n nocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showing that the evidenc e was leg ally insuffic ient to sust

ain a gu ilty verdict. Id.

The Defendant argues that no evidence was introduced indicating that he “contributed to the accident in any way” a nd emphasizes that he was not found a t fault fo r the ac cident. H e also poi nts to Detecti ve Usry ’s failur e to inclu de speci fic in formati on in the Affidavit of Complaint. The Defendant

further contendsthat no evidence w as prese nted to show that he consumed alcohol onthe day of the a ccident and that his behavior at the scene could be a ttributed to injuries he suffered during t he acci dent.

However, Detecti ve Usry and Joy Clark, tw o of the in dividuals present at the scene on the day of the accident, testified that they detected an odor of alcohol emanating from the Defendant’s person immediately after

the accident. Detective Usry also testified that the Defendant performed poorly on field sobriety tests administered at the scene and

that following his arrest, the Defendant admitted to drinking on the day of the accident. Furthermore, Elish Burc hard testified that the Defendant

was “a li ttle stumbly

” when he got out of

his truck af

ter the a ccident

. This is sufficient evidence to support

the Defe ndant’s c onviction . Finally , we note that the g overning

statute in this

case does not r

equire t he State t o prove that the Defendant caused the accide nt that re sulted in h

is arrest, but rather

only that the Defendant unlawfully operated an automobile while under the influence of an intoxicant on a public road of the State of Tennessee. See

Tenn. Code Ann. § 55-10- 401. We therefore conclude that this issue is without merit.

II. EVI DENCE OF T

HE DEFEND ANT’S REST RICTED LI CENSE

The Defend ant conte

nds that the trial c ourt err ed by admi

t tin g evidenc e conce

rning his restricted driver’s license at trial. More specifically, the Defendant argues that the State should not have been allowed to cross-examine him concerning alleged

ly false s tatement s that he ma de in his application for a

restricted driver’s license. He argue s that introduction of this evidence allowed the jury to infer that he had been previously convicted of driving under the influence. The Defendant argues that the e

vidence was highly

prejudic ial and th at it

should not have been admitted pursuant to Rule 404(b) of the Tennessee Rules of Evidenc e. With certain exceptions, Tennessee Rule of Evidence 404(b) prohibits “[e]vidence of other crimes, wrongs, or acts . . . to prove the character of

a person in order to show action i n conformity with the cha racter trait.” The State argues that the evidence was properly admitted under Rule 608(b) of the Tennessee Rules of Evidence for purposes of impeachment. Although making false sta tements on an applica

tion for a restric ted drive

r’s lice nse could certain ly b e conside

red evid ence of other wr ongs or bad actscommitted by the Defe ndant, the-7-

evidence in this case was offered during cr oss-exa mination of

the Defe ndant to de

monstrate that he was untruthful. Therefore, we belie ve, as do es the Sta

te inthis case , that it is mo re appr opriate to analyze this issue under Rule 608(b) of the Tennessee Rules of Evidence.

Rule 608 of the Tennessee Rules of Evidence allows cross-e xamination of a witnes s regarding specific instances of conduct concerning the witness’s char acter for truthfulness or untruthf ulness if the following conditions are first satisfied: (1) “The court upon r equest mu st hold

a hearing outside the jury’s presence and must determine that the a lleged conduct has probative value and that a reasonable factual basis exists for the inquiry” Te nn. R. Evid. 608(b)(1); (2) the conduct must have occurred l ess than ten years prior to the commencement of the prosecution; or if the conduc t occurr

ed mo re than t

en year s prior, th

e impeac hing part y must give

the adve rse par ty sufficient advanc ed notice

to allow the adver se party to contes tthe use of the evidence, and the court must determine “in the interests of justice that the prob ative val ue of that evidence, supported by specific facts and circumstances, sub st antially outweighs its prejudicial effect,” Tenn. R. Evid. 608(b)(2); and (3) “[i]f the w itness to be impeached is the accused in a criminal prosecution, the Statemust give the accused reasonable written notice of the impeaching conduct bef

ore tria l, and the court upon request must determine that the conduct’s probativ e value o n credib ility outweighs its unfair prejudicial effect on the substantive issues,” Tenn. R. Evid. 608(b)(3)

.
This Court has previously addressed this issue in State v. F leece , a case involving a

lmost identical circumstances to those in this case. 925 S.W.2d 558 (Tenn. Crim. App. 1995). In Fleece , the trial court

allowed the State to int

roduce r ebuttal e vidence of the De fendant ’s restr

icted lic ense at the Defendant’s trial for DUI and reckless driving. Id. at 559-60. On appeal, this Court made the following comments: “We find no relevant purpose for introducing this evidence during the state’s proof. Appellant was not charged with violation of a restricted license. Therefor e, the evidence’s sole relevance was raising an impermissible inference of a prior DUI conviction.” Id. at 560. Th is Courtconcluded that

“the pro secution ’s conduct crosse d the line and gave rise to the

impermiss ible inferencethat appellant had a previous DUI conviction.” Id. at 561

. We also concluded that the probative value of the evidence was outweighed by the da nger of its unfair prejudice and noted that “[w]hen the state was permitted to rai se such a str ong inference of a prior DUI c onviction, appellant’s chance of rece iving a fair trial became remote.” Id.

The State argues, however, that the present case is e ntirely di stinguisha

ble from Fleece because there was a relevant purpose for introduction of the contested evidence: to attack the Defendant’s credibi lity. The St ate points out that unlike the defendant in Fleece , the Def endant in this case “lied in order to obtain a restricted license and had never be en employ ed.” The State also argues that in Fleece , “this Court gave weight to the fact that the [trial] court allowed an employee from the criminal court clerk’s office to testify regarding the defendant’srestricted license” and that during examination of the witness “the defendant’s prior DUI jacket was waived around and passed back and forth to the witness.” The State points out that no such conduct occurred in this case.
Although this case

is argua bly distingu

ishable f rom Fleece , we conclude that evidence of the Defendant’s restricted driver’s license was improper ly admitted under Tennessee Rule of Evidence-8-

608(b). The State concedes that it failed to provide the Defendant with reasonable w ritten notice of the impeaching conduct before trial. See Tenn. R. Evid. 608(b)(3). In cert ain circumstance s, such

as when a defendant makes a “swee ping claim of good co nduct on direc t examina tion,” Te nn. R. Evid. 608 advisory comm’n cmts, failure to provide notice to the accused prior to impeachment does notprohibit admission of the impeaching conduct. However, no such circ umstances are present

in this case.
Furthermore, i t is somewhat unclear from the record a s to whether the trial court made a proper determination under Rule 608 concerning the probative value of the contested evidence. The trial court in this case conducted a brief bench c onference prior to admitt ing the evidence. Neverth eless, many of th

e trial c ourt’s c omments at the bench confer

ence ar e not incl u ded in the record because they were inaudible. At the conclusion of the hearing, the trial court merely stated, “The whole issue in this case is credibility.”

B ased upon our review of the record, we c onclude that the unfair prejudicial effect of th e evidence outweighed its pro bative va lue as to the Defendant’s credibility. This Court has stated that when “ considering whether the probative value of prior c onvictions outweigh s their prejudicial effec t under either Rule 608 or 609 [of the Tennessee Rules of Evidence ], trial cou rts must (a) ‘assess the similarity between the crime on trial and the crime underlying the impeaching conviction’ and (b) ‘a nalyze the relevance the impeaching conviction has to the issue of cr edibility.’” State v. Steven O. Ford , No. 01C01-9403-CC-00089, 1995 Tenn. Crim. App. LEXIS 753, at *12 (Tenn. Crim. App., Nashville, Sept. 14, 1995) (quoting Neil P.Cohen et al., Tennessee Law of Evidence § 609.9 (2d ed. 1990)). Although similarities between the impeaching offense and the crime for w hich the defendant is on trial do not, as a matter of law, render the impeac hing evidence inadmissible, “the admission of a prior c onviction

which is c losely re

lated to the charged

offense requires heightened scrutiny.” Id. (citing Long v. Sta

te , 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980)). By analogy, if the impeaching conduct

is closely related to the charged offense, it stands to reason that heightened scrutiny is also required when determining whether evidence of the impeaching conduct should be admitted into evidence.

In this case, as in Fleece , the impeaching evidence “gave rise to the impermissible infer ence that appellant had a previous DUI conviction,” 925 S.W.2d at 561, the sa

me crime withwhich the Defendant

st ood charged at trial. We thus conclude, as did this Court in Fleece , that bec aus e admission of this evidence raised such a strong inferenc e of a prior DUI conviction, the Defendant’s “chanceof receiving a fair trial became r emote.” Id. Furthermore, we simply cannot conclude that the trial court’s error in

admitting t

he impea ching evi dence in

this case didnot affect the judgment or resul tin prejudice to the judicial process. See Tenn. R. A pp. P. 36(b ); see also Tenn. R. Cr im. P. 52(a). Theref

ore, we must REVERSE the

judgment o f the tria

l court a nd REMAND

the case to the trial court fo r a new tr ial.

___________________________________-9- ROBERT W. WEDEMEYER, JUDGE