State of Tennessee v. Rocky G. Tanner ( 2019 )

05/09/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 11, 2018
STATE OF TENNESSEE v. ROCKY G. TANNER
Appeal from the Circuit Court for Stewart County
No. 2017-CR-43 Larry J. Wallace, Judge
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No. M2018-00639-CCA-R3-CD
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After a bench trial in July 2017, the defendant, Rocky G. Tanner, was found guilty of
driving on a revoked or suspended license in violation of Tennessee Code Annotated
section 55-50-504. At trial and in his motion for new trial, the defendant challenged the
State’s ability to require drivers to maintain a valid license as unconstitutional. The
defendant now challenges, for the first time, the constitutionality of Tennessee Code
Annotated section 40-24-105(b) “claiming having his license suspended due to failure to
pay court costs . . . is not legal under the United States Constitution.” However, because
the defendant did not present this challenge to the trial court, he has waived consideration
of his claim. Thus, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.
William B. Lockert, III, District Public Defender, and Matthew T. Mitchell, Assistant
Public Defender, Ashland City, Tennessee, for the appellant, Rocky Glen Tanner.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Ray Crouch, District Attorney General; and Dani Bryson, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
After being indicted for driving on a suspended or revoked license under
Tennessee Code Annotated section 55-50-504, the defendant proceeded to a bench trial
for the same on July 14, 2017. At trial the State presented testimony from the
defendant’s arresting officer, Lee Miller of the Stewart County Sheriff’s Office, who
explained he initiated a traffic stop against the defendant on October 24, 2016, in Stewart
County, Tennessee. Prior to the traffic stop, Officer Miller observed the defendant’s
vehicle at a red light on Donelson Parkway. Officer Miller noticed the defendant’s
passenger “was not wearing the seatbelt properly” and when the light turned green, he
initiated a traffic stop. During the stop, the defendant failed to provide Officer Miller
with a valid Tennessee driver’s license or proof of insurance. Instead, the defendant
presented a state-issued card for identification only “which was verified through [NCIC
(National Crime Information Center)] as suspended.” The defendant informed Officer
Miller that his driver’s license “was suspended in 2006 and he had no intentions of
getting it back.” The defendant further explained that “he didn’t need a driver’s license
to operate a motor vehicle in Tennessee if he wasn’t making any money while doing it.”
Based upon their conversation, Officer Miller arrested the defendant, believing he would
continue to drive without a valid driver’s license as the defendant did not think he was
doing anything wrong. To close its proof, the State entered into evidence a certified copy
of the Department of Safety’s record of the defendant’s driving history and citations.
The defendant stipulated to the facts as presented by the State and then moved for
a judgment of acquittal. In doing so, the defendant argued the State law requiring drivers
to maintain a valid license was unconstitutional, and the case should be dismissed. The
trial court denied the motion, found the defendant guilty, and sentenced him to a
suspended sentence of six months of supervised probation. In his motion for new trial,
the defendant again argued the driver’s license requirement was unconstitutional and
complained his arrest “in lieu of citation was a violation of Tenn[essee] Code Annotated
[section] 40-7-118 and therefore [was] an illegal seizure.” The trial court dismissed the
motion and this timely appeal followed.
Analysis
On appeal and for the first time, the defendant challenges the State’s ability to
revoke a driver’s license for failure to pay fines, court costs, or taxes associated with a
criminal offense if not paid within one year or more. See Tenn. Code Ann. § 40-24-
105(b). From our review of the record, it does not appear that any constitutional
challenge to the statute was raised in the trial court. This issue of constitutionality was
raised for the first time on appeal. Because the defendant’s constitutional claim is raised
for the first time on appeal, the issue is waived. See Tenn. R. App. P. 36(a); State v.
Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time
on appeal are considered waived.”). As a general rule, a party is not entitled to relief on
an issue that is raised for the first time on appeal unless a statute is clearly and blatantly
unconstitutional. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). If the
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constitutional challenge is not raised in the trial court, no opportunity is afforded for the
introduction of evidence which may be pertinent in determining the validity of the statute.
Lawrence, 655 S.W.2d at 929. While the defendant did raise a constitutional challenge to
Tenn. Code § 55-50-504(a)(1) in the trial court, he did not raise that claim on appeal, and
it is well settled that an appellant cannot change theories for relief from the trial court to
the appellate court. Accordingly, his new theory is waived on appeal. See State v.
Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000).
The defendant is entitled to no further relief from this Court.
Conclusion
Based on the foregoing, we affirm the judgment of the trial court.
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J. ROSS DYER, JUDGE
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