State v. Teaster

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1997 September 26, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CC-00405
)
Appellee, )
) SEVIER COUNTY
)
V. )
) HON. WILLIAM R. HOLT, JR., JUDGE
BOBBY TEASTER, )
)
Appellant. ) (DUI)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD CANTRELL MILLER JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
SUSANNA LAWS THOM AS CLINTON J. MORGAN
Assistant Public Defender Assistant Attorney General
102 Mims Avenue 2nd Floor, Cordell Hull Building
Newport, TN 37821-3614 425 Fifth Avenue North
Nashville, TN 37243-0943
ALFRED C. SCHMUTZER, JR.
District Attorney General
G. SCOTT GREEN
Assistant District Attorney General
125 Court Avenue, Room 301-E
Sevierville, TN 37862
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Bobby Teaster, appeals as of right pursuant to Rule 3 of
the Tennessee Rules of Appellate Procedure. Following a jury trial in the
Criminal Court of Sevier County, the Defendant was convicted of driving under
the influence, first offense. The trial court sentenced Defendant to serve eleven
(11) months, twenty-nine (29) days, with fifty percent (50%) minimum service
prior to release. The sentence was ordered to run consecutive to a prior ten (10)
year penitentiary sentence for bribery and subornation of perjury in Case No.
5675 in Sevier County. Defendant raises two issues on appeal: (1) that the
evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt
of first offense DUI, and; (2) that the trial court erred by ordering consecutive
sentencing. W e affirm the judgment of the trial court.
I. SUFFICIENCY OF THE EVIDENCE
W hen an accused challenges the sufficiency of the convicting evidence,
the standard is whether, after reviewing the evidence in the light most favorable
to the prosection, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979). This standard is applicable to findings of guilt predicated upon
direct evidence, circumstantial evidence or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). On appeal, the State is entitled to the strongest legitimate view of
the evidence and all inferences therefrom . State v. Cabbage, 571 S.W.2d 832,
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835 (Tenn. 1978). Because a verdict of guilt removes the presumption of
innocence and replaces it with a presumption of guilt, the accused has the
burden in this court of illustrating why the evidence is insufficient to support the
verdict returned by the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn.
1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W .2d 620, 623
(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court
reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict
approved by the trial judge accredits the State’s witnesses and resolves all
conflicts in favor of the State. Grace, 493 S.W .2d at 476.
At approximately 11:00 p.m. on January 18, 1994, Rene Kendall and Jeff
W arner, both of whom are Pigeon Forge police officers, were on patrol and drove
into the parking lot of the Gold Star gas station and market. The Gold Star sits
at an intersection of two public roads. They immediately saw Defendant walking
unsteadily from a truck at the gas pump to the inside of the store. The officers
stopped and watched him while noting that he had left his truck running. A few
minutes later, Defendant walked unsteadily back to his truck and got inside the
vehicle. The officers pulled up to the truck where Defendant was sitting by
himself. Officer Kendall requested Defendant to get out of the truck. Kendall
smelled alcohol on Defendant, and noticed that he was unsteady getting out of
the truck. The officers and Defendant went back into the store because it was
cold. Inside the store, Defendant agreed to submit to field sobriety tests.
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First, Defendant failed the alphabet test. Officer Kendall testified that
Defendant slurred his words and could not say the alphabet in the correct order.
Second, he failed the stand-on-one foot test. Officer Kendall observed that
Defendant was unable to control his balance. Third, Defendant failed the heel
-to-toe test. According to Officer Kendall, Defendant could not keep his balance
while attempting to walk a straight line. Officer Kendall determined Defendant to
be extremely impaired. At this point Defendant was placed under arrest for DUI,
and Officer Kendall asked him to empty his pockets. Defendant removed a glass
vial of white powder from his coat pocket. Officer Kendall then searched
Defendant and removed a bag of white powder from his shirt pocket and a tube
pipe from his back pocket. The powder was sent to the crime lab, and it tested
positive for cocaine. Defendant said the cocaine was for his personal use.
Defendant was taken to the police station where Officer Kendall asked
Defendant to submit to a blood test for drugs and alcohol. Defendant refused the
blood test but said he would take an intoximeter test. Neither test was
administered. The proof at trial was that Defendant had previously pled guilty to
misdemeanor drug charges in the Trial Justice Court of Sevier County regarding
the cocaine and drug paraphernalia found in his possession at the time of his
arrest for DUI.
Officer W arner testified that on January 18, 1994, he was on patrol with
Officer Kendall. He saw the Defendant staggering to his truck. Officer Warner
was present during the field sobriety tests given to Defendant, and in his opinion,
Defendant was “highly under the influence of either alcohol and/or drugs.”
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The defense proof consisted of the testimony of Iva McMahan, the
Defendant’s aunt. She testified that on January 18, 1994, the Defendant called
her from the Gold Star market for assistance because he had run out of gas in
his vehicle. She and her husband picked Defendant up and took him to his truck
on W alden’s Creek. After refueling the truck, they then followed Defendant back
to the Gold Star where Defendant stopped and they went back home. She
testified that Defendant did not appear to be drunk, and that she did not smell any
alcohol on him. She also did not remember at what time she last saw Defendant
on that night.
Tennessee Code Annotated section 55-10-401(a) provides in part as
follows:
(a) It is unlawful for any person to drive or to be in physical control
of any automobile . . . on any of the public roads and highways of
the state, . . . or any other premises which is generally frequented
by the public at large, while: (1) Under the influence of any
intoxicant, marijuana, narcotic drug, or drug producing stimulating
effects on the central nervous system ; . . . .
First, from the testimony at trial, Defendant was clearly in physical control
of his truck. The officers observed Defendant get out of his running truck, enter
the store, and then return to his truck moments later with the engine still running.
See State v. Lawrence, 849 S.W .2d 761 (Tenn. 1993). Second, he was clearly
on premises frequented by the public at large. The Gold Star gas station and
market is located in a busy part of Pigeon Forge. It logically follows that the Gold
Star is an establishment frequented by the public. Third, Defendant was clearly
under the influence of an intoxicant. Based on Officer Kendall’s experience and
observations, he determined Defendant to be “very impaired” and drunk. Officer
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W arner further testified that he observed Defendant to be “highly under the
influence of either alcohol and/or drugs.” A rational jury could have concluded
that the Defendant’s appearance, his staggering walk, his slurred speech, and his
failure to adequately perform each of the field sobriety tests demonstrated that
the Defendant was under the influence of an intoxicant.
In viewing the evidence in the light most favorable to the State, the
evidence was sufficient to support a conviction for first offense, DUI. This issue
is without merit.
II. SENTENCING
Defendant argues that the trial court erred in ordering consecutive
sentencing. Defendant was convicted on September 26, 1995 of bribery and
subornation of perjury and was sentenced to ten (10) years in prison. (Case No.
5675, Sevier County). He was serving that sentence when brought before the
trial court and convicted of DUI. The DUI sentence was ordered to be served
consecutively to the sentences for bribery and subornation of perjury.
W hen an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d). This presum ption is “conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W .2d
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166, 169 (Tenn. 1991). There are, however, exceptions to the presumption of
correctness. First, the record must demonstrate that the trial court considered
the sentencing principles and all relevant facts and circum stances. Id. Second,
the presumption does not apply to the legal conclusions reached by the trial court
in sentencing. Third, the presumption does not apply when the determinations
made by the trial court are predicated upon uncontroverted facts. State v. Sm ith,
898 S.W.2d 742, 745 (Tenn. Crim. App. 1994), perm. to appeal denied, id. (Tenn.
1995).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the facts and principles set out under the sentencing law, and
that the trial court’s findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).
Our review requires an analysis of: (1) The evidence, if any, received at the
trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4)
the nature and characteristics of the offense; (5) any mitigating or enhancing
factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-
102, -103, & -210; see State v. Smith, 735 S.W .2d 859, 863 (Tenn. Crim. App.
1987).
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Upon review of the record, we find that the trial court did not explicitly set
forth its reasoning in ordering consecutive sentencing, and hence, failed to follow
proper statutory sentencing procedure. Therefore, review by this court is de novo
without a presumption of correctness.
Upon request by the Defendant, the trial court proceeded to sentence
Defendant immediately following the jury verdict. The State submitted facts in its
argument during the hearing regarding the Defendant’s extensive criminal history,
and defense counsel admitted that the criminal history recited by the State was
“essentially” as the prosecutor had subm itted. This record reflects that the
Defendant has been convicted of bribery, subornation of perjury, possession with
intent to sell or deliver Schedule IV drugs, simple possession of cocaine,
possession with intent to sell or deliver m arijuana, possession with intent to sell
or deliver cocaine, and another DUI conviction. Both of Defendant’s arrests for
DUI and the conduct which led to the bribery and subornation of perjury charges
were committed by Defendant while he was on probation and/or parole from prior
felony convictions.
During the relatively brief sentencing hearing, the trial court did not
state on the record how he had applied the principals of sentencing found in
Tennessee Code Annotated section 40-35-103, failed to submit specific findings
of fact as required by Tennessee Code Annotated section 40-35-209(c), and did
not state reasons for the decision to order consecutive sentencing. However,
pursuant to Tennessee Code Annotated section 40-35-115, we find that the
record supports by a preponderance of the evidence that Defendant is an
offender whose record of criminal activity is extensive. Tenn. Code Ann. § 40-
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35-115(b)(2). Furthermore, we find from the record as a whole that consecutive
sentencing is necessary to protect the public from Defendant and is reasonably
related to the severity of the offenses committed by Defendant. State v.
W ilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
The Defendant on appeal relies upon the trial court’s failure to specifically
set forth facts to justify a consecutive sentence in support of his argument that
this court should reverse the trial court and order the sentence to be served
concurrently to the prior felony convictions. While the trial court may have failed
to specify certain facts to support the consecutive sentencing, we find that the
record provides the facts necessary to affirm the trial court’s action.
Finding the evidence sufficient to support the conviction, and that there is
no error in ordering the sentence to be served consecutively to the prior
convictions for bribery and subornation of perjury, we affirm the judgment of the
trial court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. W ELLES, Judge
___________________________________
JOHN K. BYERS, Senior Judge
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