IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION
FILED
June 26, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9707-CC-00264
Appellee, )
) McNAIRY COUNTY
VS. )
) HON. JON KERRY
) BLACKWOOD,
LILLY FRAN BAKER, ) JUDGE
(A.K.A. LILLIE F. HOLLOWAY), )
)
Appellant. ) (DUI, 3d Offense)
FOR THE APPELLANT: FOR THE APPELLEE:
LLOYD R. TATUM JOHN KNOX WALKUP
124 E. Main Street Attorney General and Reporter
P.O. Box 293
Henderson, TN 38340 ELIZABETH T. RYAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
ED NEAL McDANIEL
Assistant District Attorney General
300 Industrial Park Drive
P.O. Box 473
Selmer, TN 38375-0473
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The defendant, Lilly Fran Baker, appeals a jury conviction for driving
under the influence of an intoxicant, third offense. She was sentenced to eleven
(11) months and twenty-nine (29) days, all but 120 days suspended, and fined
$10,000. On appeal, the defendant raises the following issues for review:
(1) whether the evidence was sufficient for the jury to find her guilty
beyond a reasonable doubt;
(2) whether the trial court erred in failing to declare a mistrial after
mistakenly informing the jury that the defendant was also charged
with driving while revoked and violating the implied consent law;
and
(3) whether the trial court’s instructions erroneously allowed the jury
to consider intoxicants in addition to alcohol.
The judgment of the trial court is affirmed.
FACTS
Patrol Sergeant R.C. Pipkins of the Selmer Police Department testified
that he observed a pickup truck driven by the defendant make an improper turn.
The officer began following the defendant and noticed the vehicle “drifting” and
cross onto the shoulder. After a distance of approximately one-half (½) mile, the
officer activated his lights and the defendant pulled over.
Sergeant Pipkins asked the defendant to exit the truck and meet him
between their vehicles. The officer testified that the defendant appeared
unsteady on her feet. Sergeant Pipkins also testified that he smelled an odor of
alcohol on the defendant’s breath, and her speech was slurred. The defendant
informed the officer that she had lupus and was on medication, but did not
indicate that this would affect her ability to drive a motor vehicle or perform field
sobriety tests.
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Sergeant Pipkins administered three (3) field sobriety tests to the
defendant. The defendant performed the “one leg stand,” the “walk and turn,”
and the “finger to nose” tests. The officer testified the defendant passed the
“one leg stand” test, but failed the other two. The defendant failed the “walk and
turn” test by failing to touch the heel of her shoe to the toe of the other shoe,
stepping off of the line, raising her arms, and making an improper turn. She
performed the “finger to nose” test unsatisfactorily by not following instructions
and by failing to touch her nose on any of the six (6) attempts to do so. After the
field sobriety tests were completed, the officer was of the opinion that the
defendant was under the influence of an intoxicant.
After the defendant was arrested, Sergeant Pipkins found in the truck the
following: four (4) full, one (1) empty, and one (1) half-empty, 12 ounce cans of
Natural Light beer; two (2) full and one (1) half-empty 16 ounce cans of
Budweiser beer; and one (1) empty can of Busch beer. The defendant’s
boyfriend was a passenger in the vehicle.
Subsequent to his search of the vehicle, the officer requested that the
defendant submit to a chemical test to determine the content of alcohol or drugs
in her blood. The defendant refused to submit to the test.
At her trial, the defendant testified that she had consumed only one (1)
beer and a part of another at the time she was arrested. She denied being
under the influence. The defendant also presented testimony from a witness
who stated he observed the defendant approximately two (2) hours before her
arrest, and she did not appear to be under the influence of alcohol at that time.
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SUFFICIENCY OF THE EVIDENCE
The defendant contends that no rational trier of fact, after weighing the
evidence presented at her trial, could conclude beyond a reasonable doubt that
she was driving under the influence of an intoxicant. In Tennessee, great weight
is given to the result reached by the jury in a criminal trial. A jury verdict
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 reasonable inferences which may be drawn
therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover,
a guilty verdict removes the presumption of innocence which the appellant
enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.
Where sufficiency of the evidence is challenged, the relevant question for
an appellate court 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 or crimes beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The
weight and credibility of the witnesses' testimony are matters entrusted
exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542,
547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
Sergeant Pipkins testified that he observed the defendant make an
improper turn and deviate from the roadway. He further testified that the
defendant had a strong smell of alcohol on her person, was unsteady on her
feet, had slurred speech and was unable to satisfactorily perform two (2) of the
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three (3) field sobriety tests administered. The jury also heard testimony from
the officer that the defendant appeared to be under the influence of an
intoxicant. When viewed in a light most favorable to the state, there is sufficient
evidence in the record for the jury to have rendered a guilty verdict. This issue is
without merit.
MISTRIAL
The defendant’s second assignment of error is that the trial court abused
its discretion in overruling her motion for a mistrial. The defendant moved for a
mistrial at the conclusion of the trial court’s voir dire examination of the jury pool.
While informing the jury as to the issues they would be deciding, the trial court
mistakenly included the revoked license and implied consent charges which,
although in the same indictment, had been severed for the jury trial. The
defendant contends the mention of the other charges might have caused the jury
to infer she had previously been convicted of driving under the influence, thereby
unfairly prejudicing her.
No contemporaneous objection was made at the time the trial court
relayed this information to the jury. An objection was made out of the presence
of the jury after the trial court completed its initial voir dire of the jury. The trial
court acknowledged its mistake and gave the following curative instruction to the
prospective jurors:
Ladies and gentlemen, the Court may have mentioned ---
The charge here today is Driving Under the Influence of an
Intoxicant. The Court was in error in any other charges that the
Court may have explained to you. But the only charge you’ll be
dealing with here today is Driving Under the Influence of an
Intoxicant.
The determination of whether to grant a mistrial rests within the sound
discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994).
The reviewing court should not overturn that decision absent an abuse of
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discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The
burden of establishing the necessity for mistrial lies with the party seeking it.
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this
determination, no abstract formula should be mechanically applied, and all
circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,
322 (Tenn. 1993).
The trial court gave a curative instruction to the jury concerning the
charges. The jury, absent evidence to the contrary, is presumed to have
followed the trial court’s curative instructions. State v. Smith, 893 S.W.2d 908,
914 (Tenn. 1994); State v. Williams, 929 S.W.2d at 388. The defendant’s
contention that she might have been prejudiced is not sufficient to overcome the
presumption. This issue is without merit.
JURY INSTRUCTIONS
Finally, the defendant claims the trial court’s instruction on driving under
the influence of an intoxicant was prejudicial in that it included all intoxicants, yet
the state previously “elected” to prove alcohol as the means of the defendant’s
intoxication. The “election” was made by the state at the defendant’s request at
the conclusion of the state’s proof. Subsequently, the trial court’s jury charge
was as follows:
Any person who commits the offense of driving under the
influence of an intoxicant is guilty of a crime. For you to find the
defendant guilty of this offense, the state must have proven beyond
a reasonable doubt the existence of the following elements. That
the defendant was driving an automobile or motor driven vehicle
and that this act occurred on a public road or highway or a public
street or alley, and that the defendant was under the influence of
an intoxicant. The expression “under the influence of an intoxicant”
covers not only -- covers not only all the well-known and easily
recognized conditions and degrees of intoxication, but also any
mental or physical condition which is the result of taking intoxicants,
in any form, and which deprives one of that clearness of mind and
control of herself which she would otherwise possess.
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The defendant contends this instruction casts doubt on whether the jury’s
verdict was unanimous as to the type of intoxicant. The defendant complains the
wording of the instruction could have led some jurors to convict her of being
under the influence of an intoxicant other than alcohol.
One of the leading cases in this state on the doctrine of election is
Burlison v. State, 501 S.W.2d 801 (Tenn. 1973). In that case, after the state
introduced proof of numerous incidents of sexual abuse over a period of time,
the Tennessee Supreme Court held the state was required to “elect” the
particular offense upon which it was seeking a conviction. Burlison, 501 S.W.2d
at 804. One of the reasons for requiring an election in that case was to ensure
the unanimity of the jury’s verdict, avoiding a situation where one juror convicted
for one occurrence and other jurors for another occurrence. Id. at 803. More
recently, our Supreme Court has ruled that the state must make an election
“when it is pursuing convictions for discrete crimes and proof of additional
discrete crimes has been introduced at trial.” State v. Hoxie, ___
S.W.2d___,___ (Tenn. 1998).
The doctrine of election does not apply to a single offense of driving under
the influence. See State v. Ernest Seibers, C.C.A. No. 89-20-III, White County
(Tenn. Crim. App. filed June 29, 1989, at Nashville). The defendant was
charged with only one offense of driving under the influence. The proof showed
only one offense. Therefore, the state was not required to elect a particular type
of intoxicant.
Regardless, the state only relied upon alcohol to have caused the
defendant’s impairment. The defendant was not prejudiced by the use of the
word “intoxicant” instead of the word “alcohol” in the jury charge. See Tenn. R.
App. P. 36(b). This issue is without merit.
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The judgment of the trial court is AFFIRMED.
_________________________
JERRY L. SMITH, JUDGE
CONCUR:
______________________________
JOE B. JONES, JUDGE
_____________________________
CURWOOD WITT, JUDGE
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