T h e ju d g m e n t f o rm inc o rr e c tly ind ic a te s tha t t h e d e fen d a n t p le d gu ilt y. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE Se pte m be r 17, 200 3 S es sio n STA TE OF TEN NES SEE v. LER OY NEV ILS
Direc t Appeal from the Circ uit Court for Willi am son Coun ty No. I-115-701 D onald P . Harris, Judge

No. M2003- 00520-CCA -R3-C D - F iled Fe bruary 26, 2004

The de fenda

nt was convic ted of DUI , s ec o n d offe nse. He contends that 1) the evidenc e wa s insufficient, 2) the trial court e rre d in instructing the jur y on rea sonable doubt, 3) the tr ial court e rre d in instructing the jur

y as to the infere nce f

rom ref usal to submit t o a che mical test, and 4) the trial court e rre d in failing to gr ant the motion to strike the enhanc ement count. The judgme nt of the trial court is af firmed. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed
J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which D AVI D G. H AYES , J., joined. J OS EP H M. T I PTON , J ., filed a se parate conc urringopinion.
Jose phD. B a

ug h, F ra nk lin , T e nn e sse e , f

or the a pp e lla nt, L e ro y Ne vil s.
Pa ul G. S um mer s, Attor

ne y Ge ne ra l and

Re po rt e r; Ki m R. He lpe r, As sis tant A tto rn e y Ge ne ra l; Ronald L . Davis, District Attorney Gene ral; and Matthew T

. C o l v ar d , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
The de fenda

nt, L eroy Nevils, was convicted of DUI , following a jury trial. The de fenda

nt 1 waived his r ight to ha

ve a jur y decide whether

it was a sec ond offe nse for sentenc ing pur

poses. The c ourt se nte nc e d th e de fe nd ant a s a DU Ise c on d o ff

end er to e le ve n mo nth s and tw e nty -n ine da

y s, su sp e nd e d a ft e r s e rv ic e of forty -fi ve day s. Th e de fe nd ant’ s li c e ns e wa s su sp e nd e d f or tw o y e ars
. This appea l timely

followed. The defe ndant contends that 1) the evide nce w as i nsufficie nt, 2) the trial court erre d in instructing the jury on rea sonable doubt, 3) the tr ial court e rre d in instructing the jury as to the infer ence from re fusal to submit to a chemica l te st, a nd 4) the trial court err ed in fa iling to gr ant the motion to strike the enhanc ement count. The judgme nt of the trial cour t is affirmed.-2- F acts Duringthe ea

rly morning hours of Mar ch 17, 2001, at a pproxi mately

2: 0 0 a. m
. , Offic ers Mark Swain a

nd Kevin Clevela

nd wer e on patr ol in Fr anklin, Tenne ssee. The officer s observe d an orang e Corvette stoppe d at a g ree n light

. T h e d ef en d ant was the driver of

the ca r. The c ar w as pa rt ia lly in t he int e rs e c tio n a

nd wa s n ot m ov ing

. Th e of

fi c e rs wa ite d be hin d th e ve hic le fr om t we nty s ec o n d s t o t wo m i nu t es b ef o re ex i t i n g t h ei r p at ro l ca r t o i n v es t i gat e w h y t h e c ar wa s n o tm o v i n g. Be fore g etting out of

the patrol c ar, one of t he officer s activate d the emer g ency flasher s on the top of the ve hicle. As the of fice rs appr oache d the ca

r, a g roup of citiz ens informe d the offic ers that someone wa s “passe d out” in the d ri v er’s seat. Swain appr oache d from the pa sseng er side, a nd Cleveland a

pproac hed fr om the driver’ s side. The o ff i ce rs noticed that the dr iver a ppear ed to be a sle e p o r “ pa sse d o ut” be hind t he wh e e l. B oth

of fi c e rs kn oc ke d o n th e wi nd ow s in an atte mpt

to wa ke the dr ive r. Af

te r s e ve ra l of

the ir a tte mpt s, the dr ive r a

wo ke . T he de fe nd ant w a s a sk e d to e xit the vehicle . Th e d ef

en d ant appe are d to be havingtrouble openingthe door a nd stated that it was locked. Af

ter a fewseconds, Cleve land opene d the door fr om the outside.
B e fo re the de fe nd ant e xite d th e ve hic le , Sw a in n oti c e d th a t th e ve hicle a pp e are d to be in drive rather than pa

rk. He asked the defe ndant if the c ar w as in drive, a nd the def

endant sa id that the c ar w a s in

pa rk . A s th e de fe nd ant w a s g e tti ngout of the c ar, it b e g an to ro ll. Acco rd ingto Swain, the defe ndant did not rea liz e that the ca r wa s rolling. Swain pulled the de fenda nt from the car and jumped inside. He was ab le to stop the car befor e it hit any

thing. Swain then pulled the vehicle into a ne arby

parkinglot.
Offic ers Swain a

nd Cleveland testified that the defe ndant had g la s s y e ye s , s lurred spe ech, a

nd smelled of alcohol. When asked if he had been drinking, the defe ndant admitted to havingone bee r. L a te r, he sa id t

hat he ha d thr e e be e rs
. Th e of fi c e rs the n b e g an a

se ri e s o f f

ie ld s ob ri e ty

te sts . Sw a in first administered the fing er to nose te st. The def endant wa s instructed to watch the demonstration and then perf

orm the test. I nstead of wa iting for Swain to complete the de monstration, the defe ndant mimicked Swain while he demonstrated. Whil e attemptingto touch his nose, the def endant touche d his lip s in stead

. Th e defe nd ant w a s una ble to k e e p h is e y e s o pe n o r h is h e a d b a c k. He wa s a lso swaying side to side while attempting the task.
Offic er Swa in next attempted to demonstrate the one- leg g ed stand. Ag ain, the def endant mimicked the offic er a s he demonstrated. The of fice r instructed the defe ndant to raise one legand count from 1001 to 1030. The defe ndant ra ised one legand quickly put it down. Swain thought the defe ndant looked like he w as g oing to g et sick. The defe ndant attempted the task ag ain. He r aised on e le g and c ounte d 1 00 2, 10 01 , th e n p ut h is f oo t do wn . O ff

ic e r S wa in t

he n d e mon str a te d th e wa lk and turn task. The defe ndant started walking befor e Swain had complete d his demonstration. The defe ndant almost fell while attemptingto walk. B oth office rs stated that t h e d ef endant wa s signific antly

impaired. Swain testified that the def endant wa s the drunkest pe rson he ha d ever seen i n his life. The de fenda

nt was plac ed under

arr est and c harg ed with driving under the influence

. After beingarr ested, he was re ad the impl ied consent form and ref used t o submit t o a bre ath or blood test.-3-

David Savag e, the bookingoffice r at the jail, testified that the def endant a ppear ed to be intox icated. He was unsteady on his feet, ba lance d himself on the counter , and had slurr ed spee ch. Savag e also detec ted t he odor of alcohol. He said that it was c ommon for someone to be rele ased while still i mpaired, if the y have a safe ride home. A couple of

hours af ter the de fenda

nt had bee n arr ested, Of

fice rs Swain and Cleve land saw the def endant attempting to g et into his car. Appa rently , he ha d been r elea sed fr om jail and was attemptin g t o d ri v e h o me. The of fice rs appr oache d the def endant be fore he g ot into his vehicle. Swa in s tate d that the de fe nd ant s til l a pp e are d to be int oxic ate d. Th e de fe nd ant h a d b loo ds ho t, g la ssy ey es, and w as stumbling. The office rs threatened to ar rest the de fenda

nt ag ain if he dr ove. The defe ndant left with the pe rson that had br oug ht him back to his car.
Ronald Ennis testified that the defendant had been at a ca rd g ame at his house on the night that the def

endant wa s arr ested. He state d that the def endant pr obably

arr ived ar ound 7:00 p.m. He did not know how much the def endant ha d to drink or what time he l ef t

. T h e d ef

en dant did not appea r t o be im paire d when he left. Norma lly , if anyone at the c ard g ame is too drunk to drive, the y are g ive n a ri de ho me
. Cha rl e s Do bb ins wa s a lso pr e se nt a t the c ard g ame a t E nn is’ s h ou se . H e did not know how much the de fenda nt had to drink. He left the card g ame with the de fenda nt. Dobbins said that he would not ha

ve ridden with the defe ndant if he wa s impaired. The defe ndant droppe d Dobbins off a

bout two blocks from whe re he was a rre sted. The de fenda

nt did not appear

to be intox ica t ed wh en h e lef

t the car d g ame. He and the de fenda nt left around 1:30 or

2:00 a.m. Mac Coleman testified that he w as also at the c ard g ame. He said that people w ere smoking a nd drinking a t th e g ame . H e did

no t kn owho w muc h th e de fe nd ant h a d to dr ink , b ut he is no t kn own as a drinker. He saw the defendant before he left, and he did not appe ar to be intox icated. H e said that the def endant a nd Dobbins probably

left af ter 1:00 a.m.
The de fenda

nt also testified at trial. He stated that he arr ived at the car d g ame around 10:00 p.m. and that he had t wo beers while ther e. He left and dr opped Dobbins off at his aunt’s house. After leavingDobbins at his aunt’s house, the defe ndant pulled up to an interse ction and wa ited for the light to cha

ng e. He said that he did not pull out im mediately afte r the lig ht turned g ree n. He then noticed that the of

fice rs behind him h ad ac t i vated their lights. He said that he did not drive a way beca use he w as af

raid that he would be char g ed with eva ding a rre st. The def

endant de nied that he was unc onscious. He sa id that the office rs wer e lying a bout his car not beingin park a nd rolling awa y
. He a lso de nie d that his c ar wa s pa rt ia lly in the int e rs e c tio n. Th e de fe nd ant s tate d th a t he did not understand the instruc tions given to him conc erningthe f ield sobriety

tasks. He sa id that the smoke at the c ard g ame irr itated his ey es and that he does not smoke. The defe ndant testified that David Savag e wa s lying ab o u t h i s testimony . He sa id that Savag e wa s not even pre sent at the b o o k i n g.-4- Ana lys is
I . Sufficienc y

of Evidenc e The de fenda

nt first contends that the e vidence was insuffic ient to support the conviction for DUI . The de fenda

nt urg es us to adopt a de novo , or thirteent h j u ro r, s tandar d in review ing the su ffici e nc y

c la im i n li g ht o f t

he fa c t th a t th e re c or d in

thi s c a se wa s su

bmi tte d v ia

a c omp a c t di sc re c or din g . T he de fe nd ant m a de the same argume nt i n h is p re vio us DU Ic a se . St a te v. L e ro y Ne vil s, No. M 2002

- 0 0 4 1 1

- CC A

- R3

- CD , 2 0 0 3 T e n n
. Cr im

. Ap p
. L E X I S 3 0 9 , * 3

- 6 ( T e n n
. Cr im

. Ap p., Nashville, April 4, 2003), pe rm. to a ppeal denied (Tenn. Sept. 8, 2003). We rejec ted the ar g ument in t hat ca se , an d we re

je c t it a g a in tod ay
. I d. We wil l app ly the lon g sta

nd ingsta nd ard of re vie w i n our a na ly sis

. W h e n a d e f

e n d an t c h a l l e n g e s t h e s u f f i c i e n c y o f t h e e v i d e n c e , t h e s t an d ar d o f re vie w i s whether , afte r viewingthe evidenc e in the light most fa vorable to the State, any

rational trier

of fa ct c ou ld h ave fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t. T e nn . R. Ap p. P. 13(e) ; J ackson v. V ir gi n i a, 443 U.S. 307, 319, (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992)

. On appeal, the State is entitled to the strong est leg itimate view of the e vidence and all rea sonable or le g itimate infere nces which may be dra wn there from. State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003) . This Court will not re- weig h the evi d en ce , ree valuate the evidenc e, or substitut e its evidentiary

infere nces f

or those re ache d by

the jury . State v. Carey , 914 S.W .2d 93, 95 (T e nn . Cr im. Ap p. 19 95 ). F ur the rm or e , in

a c ri mi nal tr ial , g re a t w e ig ht i s g ive n to the re su lt rea ched by

the jury . State v. J ohnson, 910 S.W .2d 897, 899 (Tenn. Crim. App. 1995)

. On c e a pp ro ve d b y

the tr ia l c ourt , a

jur y ve rd ic t a c c re dit s th e wi tne sse s p re se nte d b y the State and resolves all conflicts in favor of t he S tate. State v. Wil liams, 657 S.W .2d 405, 410 (Tenn. 1983)

. The c redibility

of witnesses, the w eig ht to be g iven their testimony , and the r econc ilia t ion of conflicts in the proof

are matters entr

usted exclusively

to the jury

as the trier o f fa ct

. S t ate v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Br ewe r, 932 S.W .2d 1, 19 (Tenn. Crim. App. 1996). A jury ’s g uilty

verdic t r emoves the pr esumption of innocenc e enjoy ed by the def endant at trial and raises a presumption of g uilt. State v. Tug g le, 639 S.W .2d 913, 914 (Ten n
. 1 9 8 2 ). T he defe ndant then bea

rs the burde n of overcoming this presumption of guilt on appeal. State v. B lack, 815 S.W .2d 166, 175 (Tenn. 1991)

. Offic ers Swain a

nd Cleveland obser

ved the de fenda

nt appar entl y “p as s ed out” behind the whee l of his ve hicle while stopped at an intersec tion. The defe ndant was una war e that his ca

r wa s s t i l l i nDr i v e a s h e at t em p t ed t o ex i t t h e v eh i cl e. T h e d ef en d an t ad m i t t ed t h at h e h adb ee ndri n k i n g. The off icer s testified that the defendant smelled of alcohol, had g lassy

ey es and slurr ed spee ch, and was unstea dy

on his feet. Additionally , the def endant wa s unable to prope rly complete thre e differ ent field sobrie ty

tasks administered by

the officers. Both officer s on the s cene , as we ll as the bo ok ingof

fi c e r at the j a il, te sti fi e d th a t th e de fe nd ant a pp e are d to be int oxic a te d. Ap pr oximate ly two hours af

ter be ing a

rre sted, the off

icer s ag ain came i n contac t with the defe ndant. In Offic er-5-

Swain’s opinion, the defe ndant was still intox i ca t ed al m ost two hours after beingarr ested. The e vid e nc e su

pp or ts the c on vic tio n. Th is a

rgume nt i s w ith out me ri t.
II

. “ R e a s o n a

b l e C e rt a i n t y” U s e d

i nJ u r y In s t r u c t i o n s R a t h e r

T h an“ M o r a l C e rt a i n t y”
Th e de fe nd ant n e xt co nte nd s th a t th e tr ia l c ourt e rr e d in c ha rg ingthe jur

y a s to re a so na

ble doubt. The trial cour

t char g ed the jury

conce rning rea sonable doubt wit h the following pertinent lang uag e: “While absolute ce rtainty of guilt is not demanded by the law to convic t of any criminal char g e, re as onable c erta inty is require d.” The court used “ rea sonable c erta inty ” in def ining “pre sum p t i o n o f i n nocenc e and bur den of pr oof” a nd in defining “cir cumstantial evidenc e.” T he d e f e n d an tar g u e s t h a tt h e u s e o f t h e t e r m“ r e a s o n a

b l e c e rt a i n t y” a s o p p o s e d t o “ m o r a l c e rt a i n t y” reduc es the burden of proof to a de g ree inconsistent with due proce ss. This argument was re jected in the defe ndant’s previous DUI case , and we reje ct it ag ain today . Nevils, 2003 Tenn. Crim. App. L EXI S 309, at *19-21. As we stated in that case :
Du e pr oc e ss r e qu ir e s a

de fe nd ant b e fo un d guil ty be y on d a

re a so na ble do ub t. Ho wever, in a jury

char g e, ther e is no specif ic form r equire d as to definingwhat rea sonable doubt is. The United States Supre me Court stated, “Indeed, so longas the court instructs the jury

on the nec essity

that the def

endant’ s g uilt be proved be y ond a re asonable doubt, the Consti t u t i o n does not requir e that any particula r for m of words be use d in advising the jury o f the g overnme nt’s burden of proof. Rathe r, ‘t ake n a s a

wh ole , th e ins tr

uc tio ns [mus t] c or

re c tly c on ve y the c on c e pt o f r e a so na

ble do ub t to the jur

y (c itatio ns omi tte d) .’ ” Vi c tor v. Ne br a sk a , 5 11 U. S. 1 , 5 , 1 14 S. Ct

. 1239, 1243, 127 L . Ed. 2d 583 (1994).
Fur thermore , while Tenne ssee Patter n J ury I nstruction 2. 0 3 i n cludes the lang uage “m o ra l ce rt ai n t y ” i nt h e c o n t ex to f r ea s o n ab l e d o u b t , T en n es s ee Pattern Jury I nstruction 2.03(a) provides alter native languag e that does not use the ter m “moral c e rta inty” an d

h a s c o n ti nu o u s ly

w it h s to o d c h a ll e n g e s to it s constitutio n a li ty

. We conclude the trial cour

t’s use of the t erm “rea sonable certainty ,” as opposed to “mora l cer tainty ,” as a

prer equisite to finding guilty bey o n d a re asonable doubt, does no inj us tic e to d

ue pr oc e ss.
I d. Th is i ssu e is w ith out me ri t.
I I I . Inf e re nc e F ro m Re fu sa l to Sub mit to C he mic a l T e st
The de fenda

nt contends that the trial c ourt’s instruction to the jury reg ardingthe def

endant’ s ref usal to submit t o a che mical test violated his constitutional rights. The tr ial court instructe d the jur y in p e rt ine nt p art :
I n th is c a se , th e re wa s e vid e nc e the de fe nd ant w as requ est ed to take a te st t o deter mine the alcohol content of hi s blood. When there is evidence a per son has bee n-6-

re qu e ste d to take su c h a

te st a nd the c on se qu e nc e s o f re fu sa l hav e be e n e xpla ine d to him or her, the jury may consider a ref usal as evide nce of

the def endant’ s belief that submitt ing to the te st would have prod u ced unfavora ble re sults. You are ne ver require d to make this infere nce. It is for the jury to determine, after

a conside ration of all the e vidence , whether to make the infe renc e which the law p er m i ts, the corr ectne ss of the infer ence and we ight is to be g iven to such evide nce. Th e de fe nd ant a

rgue s that suc h anins tr

uc tio n, a llo wi ngfo r a

jur y to m ake inf

e re nc e s, is e rr on e ou s. I n support of his argument, he re lies on United States v. L ear y , wher e the Supre me Court stated that a n i n f e r e n c e i s “ ‘ i r

r a t i o n a l ’ o r ‘ ar

b i t r ar y ’ an d h e n c e u n c o n s t i tu t i o n a l , u n l e s s i t c an a t le a st b e sa id with substantial assura

nce that the presumed fac t is more li kely than not to flow from the pr oved fa ct on which it is made to depend.” 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L . Ed. 2d 57, 82 (1969). We r e je c te d th is a

rgume nt i n th e de fe nd ant’s fi rs t D UI c a se , a nd we re je c t it a g a in t od ay . N e vil s, 2003 Tenn

. C rim. App. L EXI S 309, at *21-22. “[W] hen ther e is evidenc e that a de fenda nt has ref used to submit to a blood alcohol test after beingadvised of the conseque nces of a re fusal, the tria l court should instruct the jury that it may consider the re fusal as pr obative of guilt.” State v. Bobby J

. Young , No. M1998-00402-CCA-R3-CD, 1999 Tenn. Crim. App. L EXI S 1241, *12-1 3 (T enn. Cr im. Ap p. , Nas hv ill e , D e c . 1 5, 19 99 ), pe rm . to a pp e a l de nie d ( Te nn . July 17 , 2 00 0) (q

uo te d in Nevils, 2003 Tenn. Crim. App. L EXI S 309, at *22). This issue is without m erit.
I V. Enhanc ement to Second Of fense Violates Ex P ost Fac to Provisions
The de fenda

nt lastly contends that the trial court erre d by not g ranting his motion to strike the enha nceme nt count of the indictment. The D UI offe nse i n the instant case occur red on Ma

rch 17, 2001. The de fenda

nt was ar re sted for a

nother DU Ion Marc h 30, 2001. The de fenda nt was convicted for the Marc h 30 DUI on Dec ember 12, 2001. He wa s found g uilty of the Mar ch 17 DUI on J uly 9, 2002. The defenda

nt argues t hat enhancing the conviction to sec ond offe nse violates the ex post fac to provisions of the United States and Te nnessee Constit utions, because the instant DUI offe nse occ urre d befor e the DU Ioffe nse in the first convic tion.
We look to Tennessee Code Annotated se ction 55-1 0 -4 0 3 (a )(3) to determine whe ther the defe ndant should have be en conside red a multipl e off

ender for pur poses of de termining the prope r punis hme nt. Th e se c tio n p ro vid e s a s f oll ow s:
For purposes of this sec tion, a person who is c onvicted of a violation of § 55- 10-401 shall not be conside red a repeat o r m u l t i ple offe nder a nd subject to the penalties pre scribed in subsec tion (a), if ten (10) or more y ear s have e lapsed be tween such convic tion and any immediatel y p re cedingconviction for a violation. I f, howeve r, a person has be en convic ted of a violation of § 55-10-401 within ten (10) y e ars of the pr e se nt v iol a tio n, then su c h p e rs on

sh a ll b e c on sid e re d a

mul tip le offe nder a

nd is subject to the penalties imposed upon multiple offende rs by the pr ov isi on s o f s ub se c tio n ( a ). I f a p e rs on is c on sid e re d a

mul tip le of

fe nd e r u nd e r t his subdivision, then ever

y conviction for a violation of § 55-10-401, within t en (10)-7-

y ear s of the immediately

prec edingviolation shall be considered in deter mining the number of pr ior offe nses . . . . Tenn. Code Ann. § 55- 10-403(a )(3) . The de fenda nt’s first convicti o n for DU Ioccur red on Dec ember

12, 2001. The instant conviction occurre d within ten y ear s of that conviction on Jul y 9, 2002. I t is of no conseque nce that the actual offe nse occurre d prior to the first c onviction. “[T] he def e n d ant may

be prose cuted f

or DUI , second of

fense , even thoug h his first conviction occur red a fter the alleg ed DUI

offe nse in the pre sent ca se occ urre d.” State v. Bow en, 67 S.W.3d 826, 828 (Tenn. Cr im. Ap p. 20 01 ). Th e e nh anc e d se nte nc e wa s pr op e rl y imp os e d. Th is a rgume nt i s w ith out me ri t.
Conclusion
Ba sed on the foreg oing and t he record as a whole , the judg ment of the trial c ourt is affir med.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE