State v. Anthony Paul Alderson ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER, 1997 SESSION
November 21, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) No. 01C01-9611-CC-00461
Appellee, )
) Maury County
vs. )
) Hon. James L. W eatherford, Judge
ANTHONY PAUL ALDERSON, )
) (DUI)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
GARY M. HOWELL JOHN KNOX WALKUP
P.O. Box 442 Attorney General & Reporter
Columbia, TN 38402
GEORGIA BLYTHE FELNER
Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE BOTTOMS
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464-0459
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Anthony Paul Alderson, appeals pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure from his judgment of conviction
in the Maury County Criminal Court for driving under the influence of an
intoxicant. After a bench trial, he was sentenced to serve eleven months and
twenty-nine days on probation after serving 48 hours in the county jail.
In this appeal, the defendant contends that the trial court erred in
allowing the state to reopen its proof after the defendant moved for a judgment
of acquittal. After a careful review of the record, we affirm the judgment of the
trial court.
The trial judge found the defendant guilty of driving while under the
influence of an intoxicant pursuant to Tennessee Code Annotated section
Section 55-10-401 on June 20, 1996. No transcript of the trial is included in the
record. However, the defendant prepared a Statement of the Evidence which
the trial court has certified. From this statement we derive the following facts.
Officer Tim Potts, the state’s only witness, testified that on July 1, 1995, he
observed a vehicle traveling north on Highway 7 in Maury County. When the
vehicle swerved twice across the center line, he radioed ahead to Officer Tommy
Goetz to stop the vehicle. When Officer Potts arrived, he found the defendant
and three other individuals standing around the car talking with a third officer.
Officer Potts noticed the odor of an alcoholic beverage coming from the
defendant and asked him if he had been drinking. The defendant admitted that
he had. The officer administered two field sobriety tests. Based on these tests
and his other observations, he concluded that the defendant was under the
influence and placed him under arrest. The results of the defendant’s blood
alcohol test were .16% alcohol content. This concluded the state’s proof.
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The defense then moved for a judgment of acquittal in that there
was no proof that the defendant was either driving or in physical control of the
vehicle. See Tenn. Code Ann. § 55-10-401 (a) (Supp. 1996). The trial court,
over the defendant’s objection, allowed the state to reopen its proof. Officer
Potts again took the stand and testified that as he approached the scene of the
stop he saw the defendant get out of the car from the driver’s door. The state
rested again and the defense put on no proof.
Upon these facts, the trial judge found the defendant guilty and
sentenced him to eleven months and twenty-nine days of probation after serving
48 hours.
The defendant now contends that the rules of criminal procedure
require that the trial court grant a defendant’s motion for a judgment of acquittal
“of one or more offenses charged in the indictment or information after the
evidence on either side is closed if the evidence is insufficient to sustain a
conviction for such offense or offenses.” Tenn. R. Crim. P. 29(a). The
defendant concedes that a trial judge has broad discretion in allowing the
reopening of proof. He argues, however, that, since the adoption of the
Tennessee Rules of Criminal Procedure in 1978, the motion to reopen is
appropriate only when the state has failed to establish venue and not when the
state fails to establish an essential element of the offense. We respectfully
disagree.
In Tennessee, the law is well-settled that the decision to allow a
party to reopen its proof after resting is within the discretion of the trial court.
Boone v. Citizen’s Bank & Trust, 154 Tenn. 241, 244-45, 290 S.W. 39, 40
(1927); State v. Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995); Clariday
v. State, 552 S.W.2d 759, 770 (Tenn. Crim. App. 1976). Nothing in the rules or
in case law indicates that Rule 29 restricts the trial court’s discretion to grant or
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deny a motion to reopen. The rule states, in pertinent part:
. . . The court on motion of a defendant or of its own
motion shall order the entry of judgment of acquittal of
one or more offenses charged in the indictment or
information after the evidence on either side is closed
if the evidence is insufficient to sustain a conviction of
such offense or offenses. If a defendant’s motion for
judgment of acquittal at the close of the evidence
offered by the State is not granted, the defendant
may offer evidence without having reserved the right.
Tenn. R. Crim. P. 29(a). Moreover, comments to the rule states that the new
rule “is substantially the same as the federal rule.” Id. committee comments. As
the defendant concedes in his brief, federal law permits parties to reopen the
proof under a variety of circumstances. See 10 David Raybin, Tennessee
Criminal Practice and Procedure, § 26.113 (1985 and Supp. 1997).
Although a motion to reopen has perhaps most often been granted
to permit the state to establish venue, its use has never been limited to that
particular situation. For example, in State v. John Michael Armitage, this court
reversed a conviction for second degree murder and remanded the case for new
trial because the trial court refused to reopen the proof and allow the defendant
to present the testimony of a newly found witness that tended to impeach one of
the state’s most important witnesses. State v. John Michael Armitage, No. 1241,
slip op. at 8 (Tenn. Crim. App., Knoxville, July 10, 1990). In another case, the
trial court granted the state’s motion to reopen so that the prosecution could
prove that the defendant was in possession of an automobile involved in a
burglary, and we affirmed. State v. Tuttle, 914 S.W.2d 926, 930 (Tenn. Crim.
App. 1995).1 We have found nothing in Tennessee law that would cause us to
1
See also State v. Ricky Ogan, No. 01C01-9406-CC-00213, slip op. at 6
(Tenn. Crim. App., Nashville, April 30, 1997)(defendant’s identity); State v.
Tommy Crisp, No. 167, slip op. at 4,5 (Tenn. Crim. App., Knoxville, July 19,
1989)(proof that connected defendant with stolen property); State v. Alex Biles,
No. 86-104-II, slip op. at 5 (Tenn. Crim. App., Nashville, July 10, 1987)(evidence
to prove dates of prior convictions); State v. Furman Calvin Schrader and Larry
Clark Schrader, No number in original, slip op. at 10-11 (Tenn. Crim. App.,
Knoxville, August 28, 1985); State v. Ricky Wayne Cooper, No. 71, slip op. at 5
(Tenn. Crim. App., Jackson, April 17, 1985) (testimony corroborating accomplice
testimony).
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conclude that, once the defense has moved for a judgment of acquittal, the
state may reopen its case only to offer proof of venue. The decision to grant or
deny a motion to reopen is within the discretion of the trial court.
In the absence of an injustice, a trial court’s decision to permit the
introduction of further evidence after a party has rested must be upheld.
Simpson v. Frontier Community Credit Union, 810 S.W.2d 147 (Tenn. 1991);
Clariday v. State, 552 S.W.2d 759, 771 (Tenn. Crim. App. 1976). The mere fact
that the evidence presented after the reopening of the case produced a different
result is not determinative as long as there is no surprise or unfair advantage.
Don McBay v. Charles Lesley Cooper, No. 01A01-9205-CV-00202, slip op. at 4
(Tenn. App., Nashville, Aug. 26, 1992). This court has previously noted with
approval the rule stated in United States v. Thetford, 676 F.2d 170 (5th Cir.
1982):
A motion to reopen is clearly within the discretion of
the trial court. In exercising its discretion, the court
must consider the timeliness of the motion, the
character of the testimony, and the effect of granting
of the motion. The party moving to reopen should
provide a reasonable explanation for failure to
present the evidence in its case-in-chief. The
evidence proffered should be relevant, admissible,
technically adequate, and helpful to the jury in
ascertaining the guilt or innocence of the accused.
The belated receipt of such testimony should not
“imbue the evidence with distorted importance,
prejudice the opposing party’s case, or preclude an
adversary from having an adequate opportunity to
meet the additional evidence offered.” (Citations to
other cases omitted.)
State v, John Michael Armitage , No. 1241, slip op. at 7 (Tenn. Crim. App.,
Knoxville, July 10, 1990).
In this instance, no court reporter transcribed the trial, and the
Statement of the Evidence contains the following remark, “[a]fter some
discussion the Court, over the defendant’s objection, allowed the State to re-
open its proof.” From such a record, we have no way of determining what
reasons the state gave for its request to reopen or what findings the trial court
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may have made. The appellant has the responsibility to present a record
containing “such parts of the evidence or proceedings as is necessary to convey
a fair, accurate and complete account of what transpired with respect to those
issues that are bases of appeal.” Tenn. R. App. P. 24(b); State v. Jones, 733
S.W.2d 517, 522 (Tenn. Crim. App. 1987). Lacking such a record, this court
must presume that the trial court’s ruling was adequately supported by the
evidence. State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987).
Moreover, we cannot say that any injustice resulted from the
admission of Officer Potts’s testimony even though the new evidence addressed
the issue upon which the defendant had based his motion for acquittal. As this
court wrote in State v. Tommy Crisp, No. 167 (Tenn. Crim. App., Knoxville, July
19, 1989), “[t]he only reason for allowing any party to reopen their proof is to
correct some deficiency. Otherwise, there would be no reason for the rule and
no party could ever reopen.” Slip op. 5. The defendant has not demonstrated
that the opportunity to present the additional testimony gave the state the benefit
of any surprise or unfair advantage, that either party or the court was seriously
inconvenienced, or that the defendant had no fair opportunity for rebuttal. Don
McBay v. Charles Lesley Cooper, No. 01A01-9205-CV-00202, slip op. at 4
(Tenn. App., Nashville, Aug. 26, 1992).
Officer Potts’s additional testimony was relevant, admissible, and
helpful to the determination of the defendant’s innocence or guilt. See State v,
John Michael Armitage, No. 1241, slip op. at 7 (Tenn. Crim. App., Knoxville, July
10, 1990). The trial court is entitled to and should have the benefit of all
available evidence for its assistance in arriving at a just determination. Don
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McBay v. Charles Lesley Cooper, slip op. at 4. The trial court did not abuse its
discretion in permitting the state to reopen its case after the defendant had
moved for a judgment of acquittal.
We affirm the judgment of the trial court.
__________________________
CURWOOD W ITT, Judge
______________________________
GARY R. WADE, Judge
______________________________
THOMAS T. W OODALL, Judge
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