State v. Franklin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1998 SESSION
November 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9711-CR-00491
)
) Knox County
v. )
) Honorable Chester R. Mahood, Judge
) (by designation) (at trial)
)
) Honorable Richard R. Baumgartner, Judge
JACK FRANKLIN, ) (Sentencing)
)
Appellant. ) (Driving while under the influence of an
) intoxicant, second offense; driving on a
) revoked license)
For the Appellant: For the Appellee:
Mark E. Stephens John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
John Halstead Elizabeth B. Marney
Assistant Public Defender Assistant Attorney General of Tennessee
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 Nashville, TN 37243-0493
(AT TRIAL)
Randall E. Nichols
Mark E. Stephens District Attorney General
District Public Defender and
and Marsha Selecman
Paula R. Voss Assistant District Attorney General
John Halstead City-County Building
1209 Euclid Avenue Knoxville, TN 37902
Knoxville, TN 37921
(ON APPEAL)
OPINION FILED:____________________
CONVICTIONS AFFIRMED; REMANDED FOR NEW SENTENCING HEARING
Joseph M. Tipton
Judge
OPINION
The defendant, Jack Franklin, appeals as of right following his convictions
by a jury in the Criminal Court of Knox County for driving while under the influence of an
intoxicant (D.U.I.), second offense, a Class A misdemeanor, and driving on a revoked
license (D.O.R.L.), a Class B misdemeanor. For the D.U.I. conviction, the defendant
was sentenced to eleven months and twenty-nine days confinement to be served in the
Knox County Jail, with all but ninety days suspended followed by nine months of
supervised probation. He was also fined fifteen hundred dollars. For the D.O.R.L.
conviction, he was sentenced to six months confinement, with all but ninety days
suspended, the remainder to be served on supervised probation, and he was fined five
hundred dollars. The jail time was to run concurrently, and the probation was to run
consecutively. In this appeal, the defendant contends that the evidence is insufficient to
support his conviction for D.U.I., the trial court erred in sentencing, and the trial court
erred by denying his motion for a court reporter to be provided by the state. We affirm
the convictions but remand the case for a new sentencing hearing.
Because the proceedings at trial were not transcribed, the only record
available for our review is a Statement of the Evidence that was prepared by the
defendant and approved by the state and the trial court. T.R.A.P. 24(c). At trial, Jerry
Childress testified that at about 9:30 or 10:00 p.m. on December 31, 1993, he was at
the Wal-Mart on Maynardville Highway when he caught a glimpse of the defendant’s
car and saw it hit another car. He said the defendant’s car did not have on its
headlights. He said he put on his emergency flashers and went to check on the
defendant. He testified that the defendant was sitting behind the steering wheel, and
there was no one else present in the car. He said there was not enough time for
someone to have exited the car and left the scene. He testified that when he told the
defendant to turn on his headlights, the defendant became irate and cursed him.
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Childress said he determined that the defendant was not injured, and he moved away
from the car. Childress said the defendant appeared to have been drinking, and he
could smell alcohol coming from the defendant. He also said the defendant became
irate when a police officer asked for the defendant’s driver’s license, and the defendant
tried to pass the officer his Social Security card.
On cross-examination, Childress admitted that two of his sons were killed
in single car accidents. He admitted that he often thought about the accidents in which
his sons were killed, and this is probably why he paid close attention to the accident in
the present case. He said the police did not interview him at the scene but took his
name.
Sandra Massengill, a Tennessee State Trooper, testified that she arrived
on the scene of the accident and saw the defendant’s car in the southbound lane. She
said the defendant was agitated when she spoke with him, and she suspected he had
been drinking. She said the defendant was standing at the driver’s side of his car, and
she immediately smelled alcohol. She said she did not remember asking the defendant
if he was the driver, although she said she probably did, and her paperwork listed the
defendant as the driver. She testified that the defendant was belligerent and
uncooperative, and he gave her his Social Security card instead of his driver’s license.
She said his eyes were red and watery, his speech was slurred, and his clothes were
disheveled.
On cross-examination, Trooper Massengill said that she was not present
at the time of the accident and did not see the accident occur. She said she did not see
the defendant driving his car.
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Trooper John Woods testified that the defendant was heavily intoxicated,
and he could smell alcohol coming from the defendant. He said he could not
understand everything the defendant was saying.
Trooper Vanessa Boles testified that when she arrived at the scene, there
were people everywhere. She said the defendant was unruly and tried to pass his
Social Security card when she asked for his driver’s license. She said the defendant
told her that no one else was with him, and he did not deny drinking. She said she
asked the defendant to perform a heel-to-toe test, but he could not do it. A certified
copy of the defendant’s driving record was introduced into evidence, and the record
showed that the defendant’s license was revoked at the time of the accident. Trooper
Boles stated that she did not fill out a D.U.I. report. She said the defendant was upset
because the other car failed to yield and caused the accident.
The defendant presented two witnesses. Paul Flatford testified that he
had known the defendant for about ten years but that they were acquaintances, not
friends. He said he saw the defendant on the night of the accident. He said that as he
was driving, he saw the defendant in the passenger side of a car, and a woman with
dark hair was driving the car. He said the car’s headlights were on. He said the
defendant waved to him as he passed. He said the accident occurred a few seconds
later when a small white car came across the road and was struck by the defendant’s
car. He said that because traffic was backed up, he went around the accident and went
home. He admitted that he had talked to the defendant since the accident, but he said
he did not ask the defendant who was driving. Flatford said he remembered the
defendant saying that there was a woman driving.
Scott Day testified that he was driving down Maynardville Highway behind
the defendant before the accident occurred. He said there were two people in the
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defendant’s car, and its headlights were lit. He said the driver was a female with short
dark hair. He said that as they were proceeding down the road, a small white car pulled
out from the intersection. Day testified that the defendant was the passenger in the car.
He said that after the accident, the woman driving the car left and walked to another
car. He said he left after determining that no one was injured. He said he learned the
next morning that the defendant was looking for witnesses, and he notified the
defendant through a friend that he had witnessed the accident. He said he had seen
the defendant a couple of times since the accident. He also said he did not see the
defendant at the scene of the accident.
In rebuttal, Trooper Boles testified that she did not recall seeing either
Flatford or Day at the wreck. She admitted that she arrived at least five minutes after
the wreck occurred. Trooper Massengill testified that the other car involved in the
accident was blue, not white.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient to support his
conviction for D.U.I. Specifically, he argues that because the state presented only one
eyewitness to the accident who was impeached, and the defendant presented two
eyewitnesses, the weight of the evidence is insufficient. He also argues that the trial
court should have set aside the verdict in its capacity as a thirteenth juror. We
conclude that the evidence is sufficient to support the conviction for D.U.I.
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, 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, 99 S. Ct.
2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that
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the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Viewing the evidence in this light, we conclude that it is sufficient. The
state presented one eyewitness who testified that the defendant was driving the car and
that the headlights were not on. The witness also testified that after the wreck, there
was not enough time for someone to have exited the defendant’s car and left the
scene. Three state troopers testified that the defendant was intoxicated. One trooper
testified that the defendant told her there was no one else in the car. Although the
defense presented two witnesses who testified that a dark haired woman was driving
the car, the jury was entitled to accredit the testimony of the state’s witnesses and reject
the testimony of the defense witnesses.
The defendant also contends that the trial court erred by denying him a
new trial in its capacity as a thirteenth juror. Rule 33(f), Tenn. R. Crim. P., provides that
the trial court may grant a new trial if it views the verdict to be contrary to the weight of
the evidence. When a motion for a new trial is overruled without comment, approval of
the verdict is presumed. See State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App.
1993). Furthermore, “once the trial court approves the verdict as the thirteenth juror
and imposes judgment, the review of the evidence on appeal is quite limited, requiring
the accrediting of the testimony of the witnesses for the state and the resolution of
evidentiary conflicts in favor of the state.” State v. Burlison, 868 S.W.2d 713, 719
(Tenn. Crim. App. 1993) (citation omitted). W hen viewed in this light, the record shows
that the trial court denied the defendant’s motion for a new trial, finding the evidence to
be “adequate, if not overwhelming.” We conclude that the trial court did not err by
refusing to set aside the verdict or grant the defendant a new trial.
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II. SENTENCING
The defendant contends that his sentence is excessive. He argues that
the trial court improperly sentenced him to more than the mandatory minimum sentence
set by the legislature. He also contends that the trial court erred by requiring his
probationary periods to run consecutively. The state argues that the sentence is
proper.
Appellate review of misdemeanor sentencing is de novo on the record
with a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-
401(d), -402(d). The “presumption of correctness which accompanies the trial court’s
action 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 166, 169 (Tenn. 1991). As the Sentencing Commission Comments
to T.C.A. § 40-35-401(d) note, the burden is now on the appealing party to show that
the sentencing is improper. We note that there is no presumptive minimum sentence
provided by law for misdemeanor sentencing. See, e.g., State v. Creasy, 885 S.W.2d
829, 832 (Tenn. Crim. App. 1994). However, in misdemeanor sentencing, the trial court
must consider the purposes and principles of the Criminal Sentencing Reform Act of
1989. T.C.A. § 40-35-302(d).
Although the defendant argues that the length of his sentence is
excessive, T.C.A. § 55-10-403(c) essentially mandates a maximum sentence for D.U.I.,
“with the only function of the trial court being to determine what period above the
minimum period of incarceration established by statute, if any, is to be suspended.”
State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996). Therefore, we must
determine whether the trial court erred in concluding that alternatives to incarceration
were not appropriate in this case.
7
In sentencing the defendant to eleven months and twenty-nine days with
all but ninety days suspended for the D.U.I. conviction, the trial court stated that it was
considering the defendant’s prior convictions for felony assault and simple assault, and
the circumstances of the offense, believing that it was an accident involving personal
injury. The trial court also considered the need for deterrence and the fact that the
defendant persisted in claiming that he was not driving the car.
We question the bases for the trial court’s sentencing determinations. 1
There is no evidence in the record before us that the accident resulted in personal
injury. Nor is there evidence in the record of the particularized need for deterrence
within the jurisdiction. See T.C.A. § 40-35-103(1)(B); see also State v. Horne, 612
S.W.2d 186, 187 (Tenn. Crim. App. 1980); State v. Smith, 735 S.W.2d 859, 864 (Tenn.
Crim. App. 1987) (holding that the trial court’s finding that the sentence will have a
deterrent effect cannot be merely conclusory but must be supported by proof). The
problem, though, is that the defendant failed to include the presentence report as part
of the record on appeal. Thus, we are in no position to conduct a proper de novo
review.
In any event, however, we agree with the defendant’s contention that the
trial court did not have the authority to set the defendant’s periods of confinement for
the D.U.I. and D.O.R.L. to run concurrently while setting his periods of probation to run
consecutively. If a defendant is sentenced to both confinement and probation, the
probation must run in the same manner as the confinement. “The term ‘sentence’
includes both the period of incarceration and the period of probation. Thus, if the trial
court orders the defendant’s sentences to run consecutively, then each portion of his
sentences must be so served.” State v. Connors, 924 S.W.2d 362, 364 (Tenn. Crim.
App. 1996). Thus, the case should be remanded for resentencing.
1
W e not e tha t the s ente ncin g jud ge did not p resid e ove r the d efen dan t’s trial.
8
III. MOTION FOR A COURT REPORTER
The defendant argues that the trial court erred by denying his oral motion
for a court reporter. He contends that he has been unduly prejudiced on appeal
because his case involves complicated factual claims of witnesses for which
transcription was necessary to convey an accurate picture of the trial. The state argues
that because the defendant’s Statement of the Evidence is sufficient to allow adequate
review of the sufficiency of the evidence, any potential error was harmless, and the
defendant was not prejudiced.
Initially, we note that indigent defendants have due process and equal
protection rights to an appellate review as adequate as those defendants who can
afford transcripts. See Mayer v. City of Chicago, 404 U.S. 189, 193, 92 S. Ct. 410, 413
(1971). This means that the state must provide an indigent defendant with “a record of
sufficient completeness to permit proper consideration of his claims.” Mayer, 404 U.S.
at 194, 92 S. Ct. at 414 (citations omitted). However, a trial court’s denial of a
defendant’s motion for a court reporter does not automatically create reversible error.
See State v. Hammond, 638 S.W.2d 433, 434 (Tenn. Crim. App. 1982). Other methods
of reporting trial proceedings may provide a defendant with a sufficiently complete
record, including a statement of facts to which both sides have agreed. Mayer, 404
U.S. at 194, 92 S. Ct. at 414. In Tennessee, an appellant may prepare a Statement of
the Evidence in lieu of a verbatim transcript if “no stenographic report, substantially
verbatim recital or transcript of the evidence or proceedings is available.” T.R.A.P.
24(c); see State v. Gallagher, 738 S.W.2d 624, 626 (Tenn. 1987); Hammond, 638
S.W.2d at 434 (holding that a statement of the Evidence verified for accuracy and
approved by both sides and the trial judge is adequate for appellate review of
sufficiency of the evidence).
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In light of the detailed Statement of the Evidence provided by the
defendant and approved by both the district attorney and the trial court, we conclude
that the defendant suffered no prejudice on appeal by not having a court reporter at
trial. The Statement of the Evidence was adequate for this court to conduct its review
of the sufficiency of the evidence.
The defendant also argues that the record is inadequate for this court to
review whether the trial court failed in its capacity as the thirteenth juror. However, the
defendant’s motion for a new trial was transcribed, and it reflects that the trial court
determined the evidence to be “adequate, probably overwhelming.” Having concluded
that the trial court exercised its capacity as the thirteenth juror, we have nothing else to
review. See Burlison, 868 S.W.2d at 719. This issue is without merit.
CONCLUSION
In consideration of the foregoing and the record as a whole, the
convictions for driving under the influence of an intoxicant, second offense, and driving
on a revoked license are affirmed. The case is remanded to the trial court for a new
sentencing hearing.
__________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
John H. Peay, Judge
_________________________
David G. Hayes, Judge
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