State v Green
| Decision Date | 14 December 2000 |
| Docket Number | 99-02204 |
| Parties | STATE OF TENNESSEE v. TREVA DIANNE GREENIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Blount County No. C-10642
The defendant appeals from her Blount County Circuit Court conviction and sentence for driving under the influence, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and 29 days in the Blount County Jail, all of which was suspended except for service of eight days incarceration. The jury imposed a fine of $1,500. In this direct appeal, the defendant complains that the evidence is insufficient to support her conviction, that statements she made to the arresting officer should have been suppressed, that prosecutorial misconduct taints the verdict, that the jury should have been charged on reckless driving as a lesser-included offense, and that her sentence and fine are excessive. We affirm the judgment of the trial court, as modified.
Steve Merritt, Maryville, Tennessee for the appellant, Treva Dianne Green, on appeal.
Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Nashville, Tennessee, Michael L. Flynn, District Attorney General, Edward P. Bailey, Jr., Assistant District Attorney General, Kirk Andrews, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Treva Dianne Green, appeals as of right from her Blount County conviction following a jury trial for driving under the influence of an intoxicant (DUI), first offense, a Class A misdemeanor. See Tenn. Code Ann. § 55-10-401 (1997). The trial court imposed a sentence of eleven months, twenty-nine days, with the first eight days to be served in confinement and the remainder on supervised probation. The jury imposed a fine of $1,500. In this appeal, the defendant raises the following issues:
1. Was the evidence sufficient to sustain the defendant's conviction for DUI?
2. Did the trial court err in not suppressing the defendant's statements?
3. Did the prosecution engage in misconduct in closing argument that affected the verdict to the prejudice of the defendant?
4. Did the trial court err in not charging the jury on reckless driving as a lesser-included offense?
5. Did the trial court abuse its discretion in sentencing the defendant and allowing the jury to impose the maximum fine?
After a review of the record, the briefs of the parties, and the applicable law, we affirm the trial court's judgment although we modify the judgment to reflect a confinement percentage of thirty percent of the total sentence.
The defendant was charged with DUI after Townsend police officer Mark Gann stopped the white Jeep Cherokee she was driving along Highway 321 in Blount County on August 6, 1997, just before midnight. Earlier that evening, the E-911 Communications Center had notified local law enforcement to be on the lookout ("BOLO") for this vehicle because it was being operated in a dangerous manner.
Officer Gann drove to the parking lot of the post office on Highway 321. He soon spotted the defendant's white Jeep Cherokee, and when the vehicle passed he pulled out and followed to observe it. He observed that the Jeep Cherokee was weaving, and it crossed the center line of the highway three times. He followed the defendant's vehicle for approximately five-tenths of a mile, and after watching it weave back across the center line the third time, Officer Gann turned on his emergency equipment to signal the motorist to stop, which the defendant did.
Officer Gann approached the vehicle and observed that the driver's side window was down. The defendant produced her driver's license at his request, and when she turned to speak, Officer Gann detected the odor of alcohol about her breath. Before she turned, he did not smell anything. He informed her that she had been stopped because of her erratic driving and the E-911 advisory, and he asked her to walk to the rear of his cruiser. She complied, but she stumbled over her feet. Officer Gann told the defendant that he detected the odor of alcohol on her breath; he then asked if she had consumed any alcohol that night. She responded that she had "probably consumed too much rum to drive."
Officer Gann administered the walk-and-turn and the one-leg stand sobriety tests to the defendant. Although she was barefoot, the roadway was paved at that location. The defendant did not appear at all focused or attentive when the officer explained to her how to perform the tests, and she performed poorly. Moreover, during the instructional stage of the tests, the defendant laughed a lot, and she repeatedly interrupted Officer Gann by giggling. She also patted him on the shoulder when he demonstrated the one-leg stand and otherwise tried to hang onto him.
When the field sobriety tests were completed, Officer Gann concluded that the defendant was under the influence of an intoxicant while operating her vehicle. He arrested her and transported her to the Blount County jail. Before the drive began, he requested that she submit to a blood alcohol test; she refused and explained that her attorney always advised her never to take that test. Then, while en route to the jail, the defendant referred in general terms to her prior run-ins with the law, and she made suggestive comments about how she had avoided being arrested in another jurisdiction. Also, once at the jail and just before she was removed from the cruiser, the defendant asked the officer if she gave him a "blow job," could she "go home free."
The defendant did not testify at trial, but her husband, David Lee, did. He recounted for the jury numerous physical and emotional problems with which his wife recently had been confronted. The defendant's mother had died less than six months before the defendant's arrest in this case, and the relationship with her brother had thereafter deteriorated and become extremely acrimonious.
In addition, in 1972 the defendant was involved in an automobile accident that required multiple surgeries, and approximately three months before her DUI arrest, the defendant was involved in another car accident that resulted in hospitalization. According to her husband, the defendant had been diagnosed as suicidal, and she had been prescribed medication for depression. Because of previous surgeries, the defendant also was receiving hormone shots.
The defendant's husband claimed that his wife had consumed no alcoholic beverages the day or evening of her arrest and that, in fact, she did not drink at all. As for the odor of alcohol on the defendant, the husband explained to the jury that their children had accidently knocked over his mixed alcoholic beverage earlier in the evening, and the drink had spilled on the defendant. She did not change her clothing before going for a drive because the family was on its way home from a vacation, and there were no clean clothes available.
The jury retired and deliberated for 28 minutes in this case before announcing its verdict that the defendant was guilty of driving under the influence of an intoxicant and that a fine of $1,500 was assessed.
The defendant complains that the state failed to prove beyond a reasonable doubt that she was under the influence of an intoxicant. We must disagree.
The standard that we apply in reviewing the sufficiency of the convicting evidence is familiar. When an accused challenges the sufficiency of the evidence, an appellate court inspects the evidentiary landscape, including its direct and circumstantial contours, from the vantage point most agreeable to the prosecution. The reviewing court then decides whether the evidence and the inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable doubt that the defendant is guilty of the charged crime. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990); Tenn. R. App. P. 13(e).
The defendant invites us to step into the role of factfinder on appeal. She cites to Officer Gann's admission that her vehicle crossed over the center line only by a tire width and that the swerving could have been for some reason other than intoxication. Officer Gann, the defendant emphasizes, conceded that the smell of alcohol could have emanated from her clothing. Furthermore, Officer Gann testified that the defendant did not have bloodshot eyes, dilated pupils, or slurred speech.
The defendant, likewise, emphasizes her husband's testimony that she did not partake of alcohol at all, that their children had accidently knocked over his mixed alcoholic beverage earlier in the evening, and that the drink had spilled on the defendant. As for the field sobriety tests, the defendant's husband testified that she had numerous physical problems affecting her balance; also, the defendant was barefoot at the time that she was tested.
Despite these remonstrations, we must decline the defendant's invitation. In determining sufficiency of the evidence, the court does not replay and reweigh the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness credibility, the weight and value of the evidence, and factual disputes are entrusted to the finder of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978); Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Simply stated, the court is not an appellate surrogate for the trier of fact.
Although the Jackson v. Virginia standard of review is often cited, the delicate...
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