State v. Cole

IN THE COURT OF CRIMINAL APPEALS
AT KNOXVILLE FILED
APRIL 1997 SESSION
July 29, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9604-CC-00171
Appellee, )
) SULLIVAN COUNTY
vs. )
) HON. R. JERRY BECK, JUDGE
RICKY DEAN COLE, )
) (DUI, Possession of Marijuana and
Appellant. ) Drug Paraphernalia)
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN WALLACE (trial and appeal) JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
P. O. Box 839
Blountville, TN 37517 SARAH M. BRANCH
Assistant Attorney General
RANDALL E. REAGAN (appeal only) 450 James Robertson Parkway
602 Gay Street, Suite 905 Nashville, TN 37243-0493
Knoxville, TN 37209
H. GREELEY WELLS, JR.
District Attorney General
PHYLLIS H. MILLER
Assistant District Attorney General
P. O. Box 526
Blountville, TN 37617-0526
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Ricky Dean Cole, was convicted by jury verdict of the offenses of
driving under the influence of an intoxicant, fourth offense; simple possession of
marijuana; and possession of drug paraphernalia. He was sentenced to eleven (11)
months and twenty-nine (29) days for each of the three offenses with two of the
sentences running concurrently and the other consecutively. Defendant raises the
following issues in his appeal:
(1) whether the evidence was sufficient to sustain the convictions;
(2) whether prejudicial error resulted when a toxicology request
form containing a reference to prior convictions was passed
to the jury; and
(3) whether the trial court erred in imposing consecutive sentences.
We AFFIRM the judgment of the trial court.
FACTS
A. State’s Proof
Defendant resided in a room at the Model City Motel in Kingsport. On the
evening of December 31, 1993, he had a New Year’s Eve party and became heavily
intoxicated. At approximately 10:00 p.m. the defendant was observed entering and
driving an automobile which hit another automobile in the parking lot. Realizing that
he had struck the car of fellow occupants in the motel, he went to their room and
advised them that he had hit their vehicle. The police were summoned, much to the
chagrin of the defendant.
Defendant also advised other persons, including a police officer, that he was
responsible for the accident. Since defendant’s girlfriend had already driven the car
away by the time the police arrived, the officer questioned the defendant about his
girlfriend. The defendant stated he did not know his girlfriend’s name.
By all accounts, defendant was, in the words of the late Chief Justice Joe
Henry, “drunk - openly, visibly, notoriously, gloriously and uproariously drunk.”1 He
1
Metro. Government of Nashville & Davidson County v. Martin, 584 S.W.2d 643, 646
(Tenn.1979). Defendant had purchased five (5) half gallons of vodka “to start with” and when
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failed all field sobriety tests, and his blood alcohol level was tested to be .18%. Since
the inebriated defendant was barefooted and shirtless on this “icy cold” New Year’s
Eve night, the arresting officer allowed him to put on some clothes prior to being taken
to the police station. A subsequent search of the defendant yielded a bag of marijuana
and a small set of scales in the defendant’s coat pocket. The defendant had been
seen wearing this jacket on prior occasions.
B. Defense Proof
Defendant testified in his defense. He admitted to being “heavily intoxicated.”
As was the custom when he got drunk, he and his girlfriend got into a fight since “she
don’t like me [drunk].” The defendant described his girlfriend as “six one” weighing
“three, twenty-five,” which was “a bunch” more than defendant weighed.2 This was no
ordinary fight but a “bad one, knock down, drag out” in which “[s]he liked to beat me
to death, blackened both of my eyes.” According to the defendant, “[my girlfriend] run
to her car and jumped in” the 1973 Omni locking the doors. Overmatched yet
undaunted, the fearless, fiery, forceful defendant gave chase to his fleeing girlfriend,
much to the amazement and amusement of his fellow party-goers in attendance at this
“major wild party.”3 It was at this point, according to the defendant’s testimony, that his
girlfriend endeavored to drive away in great haste and backed into the other
automobile. Defendant denied driving the automobile.
The defendant further denied telling anyone that he had driven the automobile.
He admitted telling the officer that he did not know his girlfriend’s name. However, he
testified that she had three (3) names, and he did not know which was her true name.
While they were dating, she used a different name than when they were living
together.4 As to the coat, the defendant explained that the party-goers had piled their
coats in the room, and he simply grabbed one of them. This was not his coat, and he
asked whether he drank “a bunch of that yourself,” defendant replied, “I tried.”
2
According to the pre-sentence report, defendant weighed 160 pounds, less than
one-half his girlfriend’s weight.
3
None of the party-goers testified. In explaining their failure to testify, defendant
testified that “everybody that he knowed” was either out-of-state or in jail.
4
At the time they were dating, defendant did not know she was married.
3
was unaware that the coat contained the marijuana and scales.
The only other defense witness was defendant’s mother who testified in
surrebuttal. She testified that the jacket worn by defendant upon release from the jail
did not fit him and was not the same jacket she had purchased for him earlier.
C. Jury Verdict
The jury convicted the defendant of driving under the influence of an intoxicant,
simple possession of marijuana and possession of drug paraphernalia. The trial then
went into the second phase in which the state introduced proof of three prior DUI
convictions. The jury then found defendant guilty of DUI, fourth offense.
D. Sufficiency of the Evidence
In determining the sufficiency of the evidence, this Court does not reweigh or
re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A
jury verdict approved by the trial judge accredits the state’s witnesses and resolves all
conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the
strongest legitimate view of the evidence and all legitimate or reasonable inferences
which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to
the sufficiency of the evidence unless the defendant demonstrates that the facts
contained in the record and the inferences which may be drawn therefrom are
insufficient, as a matter of law, for a rational trier of fact to find the accused guilty
beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996). Accordingly, it is the appellate court’s duty to affirm the conviction if the
evidence, viewed under these standards, was sufficient for any rational trier of fact to
have found the essential elements of the offense beyond a reasonable doubt. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 61
L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
This case clearly turned on the credibility of the witnesses. The jury accredited
the state’s proof and rejected the version given by the defendant. The evidence clearly
supported the jury’s guilty verdict of driving under the influence of an intoxicant, simple
possession of marijuana and possession of drug paraphernalia. This issue is without
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merit.
TOXICOLOGY REQUEST
During the testimony of the police officer, the “alcohol/toxicology request” form
was marked for identification. The officer read to the jury from this form. Under type
of offense, the officer simply stated “DUI.” In fact, the form read “DUI 6th.”
During the testimony of the forensic scientist who had tested defendant’s blood
sample, the state requested that the laboratory report be passed to the jury. Instead,
the “alcohol/toxicology request” was inadvertently passed to the jury. This inadvertent
error was not discovered until the request form had been passed to some of the jurors.
Counsel then suggested to the court that this exhibit had been marked for
identification only and should not be passed to the jury. The trial judge was of the
opinion it was a “full exhibit.” The judge further determined it was too late to do
anything since the document had already been passed to the jury. At no time did
counsel point out to the court or jury that the document contained the words “DUI 6th.”
Furthermore, there was no mention made by counsel, the court, nor any witness during
the guilty phase of the trial as to any prior convictions.
We first note that this issue was not raised in the motion for new trial. Only the
sufficiency of the evidence was raised in the motion. Accordingly, this issue is waived.
Tenn. R. App. P. 3(e); State v. Seaton, 914 S.W.2d 129 (Tenn. Crim. App. 1995).
We further conclude, in light of the facts and circumstances, that this
inadvertent error was harmless. Tenn. R. App. P. 36(b). The officer’s reading from the
form simply stated that the type offense was “DUI.” There was no mention made
during the guilt phase of trial of any prior convictions. In light of the evidence against
the defendant, defendant did not suffer any prejudice. This issue is without merit.
CONSECUTIVE SENTENCING
Defendant was sentenced to eleven (11) months and twenty-nine (29) days on
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each of the three offenses with two (2) of the sentences running concurrently and one
(1) running consecutively. Defendant contends there is no basis for consecutive
sentencing.
Defendant had numerous convictions not only prior to commission of the
present offense, but also several convictions thereafter. He had alcohol and drug
related offenses and had numerous traffic offenses, including driving on a revoked
license. He was on probation at the time this offense was committed. Pursuant to
Tenn. Code Ann. § 40-35-115(b)(2), (4) and (6) the trial court in imposing consecutive
sentences found the following:
(1) the defendant had an extensive record of criminal
activity;
(2) the defendant was a dangerous offender; and
(3) the defendant committed the present offense while
on probation.
This Court’s review of the sentences imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). The evidence clearly
supports the trial judge’s rationale for consecutive sentencing. Furthermore, the terms
imposed by the trial judge are reasonably related to the severity of the offenses and
are necessary to protect the public from further criminal acts by the offender. State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Although the trial court did not make
the findings required by Wilkerson, we find that these factors are present under our
power of de novo review. State v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1993);
State v. Edward Thompson, C.C.A. No. 03C01-9503-CR-00060, Cocke County (Tenn.
Crim. App. filed December 12, 1996, at Knoxville). Consecutive sentencing is
appropriate. This issue is without merit.
For the above reasons the judgment of the trial court is AFFIRMED.
JOE G. RILEY, JUDGE
CONCUR:
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JERRY L. SMITH, JUDGE
CHRIS CRAFT, SPECIAL JUDGE
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