State v. Thompson

• Decision Date: 15 December 2000
• Citation: 88 S.W.3d 611
• Parties: STATE of Tennessee v. Billy THOMPSON.
• Court: Tennessee Court of Criminal Appeals

88 S.W.3d 611

STATE of Tennessee v. Billy THOMPSON.

Court of Criminal Appeals of Tennessee, at Nashville.

December 15, 2000.

Application for Permission to Appeal Denied by Supreme Court May 14, 2001.

James D. Franks, Hernando, Mississippi, and S. Ronald Lucchesi, Memphis, TN, for appellant, Billy Thompson.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer, Assistant Attorney General, Wiliam L. Gibbons, District Attorney General, and Paula Wulff and Reginald Henderson, Assistant District Attorneys General, for appellee, State of Tennessee.

HAYES, J., delivered the opinion of the court, in which WADE, P.J., and WOODALL, J., joined.

OPINION

HAYES, J.

In 1995, Billy Thompson, a Mississippi resident, was convicted in Shelby County of driving under the influence, resulting in suspension of his driving privileges in this state for one year. Fifteen months later, Thompson was again charged and convicted of driving under the influence, sixth offense, reckless driving and driving while revoked, being the instant offenses before this court. On the date of the latter offenses, Thompson possessed a valid Mississippi driver's license, however, he had not complied with the statutory requirements for reinstatement of his driving privileges in this state. Thompson appeals his convictions contending the trial court erred (1) by failing to sever the charge of driving while license revoked from the remaining counts and (2) by failing to grant his motion for judgment of acquittal as to the charge of driving while license revoked. We conclude that all charges were properly joined pursuant to Tenn.R.Crim.P. 8(a). Moreover, we hold that a nonresident motorist, although possessing a valid out-of-state license, may not operate a motor vehicle in this state following this state's revocation of his driving privileges until the motorist complies with Tennessee's reinstatement procedures. Because we find the proof sufficient to support the challenged conviction, the judgment of the trial court is affirmed.

The Appellant, Billy Thompson, was convicted by a Shelby County jury of driving while license revoked (DWLR), driving under the influence, sixth offense, and reckless driving. The trial court imposed respective sentences of eleven months, twenty-nine days for driving under the influence, six months for reckless driving, and a five hundred dollar fine for DWLR. The sentences for driving under the influence and reckless driving were ordered to be served consecutively. In this appeal as of right, the Appellant raises two issues for this court's review:

I. Whether the trial court's denial of the Appellant's motion to sever the charge of driving on a revoked license from the charges of driving under the influence and reckless driving was error; and

II. Whether, as a matter of law, the Appellant's driving privileges in the State of Tennessee were automatically reinstated as evidenced by his procurement of a valid Mississippi license after the expiration of the one-year Tennessee revocation period.

After review, we affirm.

Background

Shortly before noon on July 8, 1997, Memphis Police Officer Dorothy Hyman was on patrol on Interstate 55 "running radar" on northbound traffic. Officer Hyman was approached by a motorist who informed her that "there was a truck traveling southbound on 55 running off the road...." Officer Hyman, soon thereafter, observed "a tan and brown looking truck coming southbound; and he was all over the road. And there was traffic backed up behind him so badly and cars were trying to get around him." "[T]here was [sic] people running off the road trying to avoid being hit by this vehicle that was all over the road."

After a short pursuit, Officer Hyman stopped the vehicle. Upon approaching the driver's side of the truck, Officer Hyman immediately noticed a strong odor of alcohol emanating from the driver, subsequently identified as the Appellant. Two bottles of alcohol were discovered in the truck. Additionally, both the Appellant's physical appearance and his behavior indicated that the Appellant was under the influence of an intoxicant. A DUI unit was dispatched to the scene. The Appellant refused to submit to both a field sobriety test and a breathalyzer test.

The Appellant, a Mississippi resident, was in possession of a valid Mississippi license, which had been issued only several hours before his arrest. At the time of his arrest, his Tennessee driving privilege was suspended, effective March 23, 1995. Following a jury trial, the Appellant was found guilty of driving under the influence, sixth offense, reckless driving, and driving while revoked.

I. Severance

On May 20, 1998, the Shelby County Grand Jury returned two indictments against the Appellant. The Appellant was charged in one indictment with one count of driving while license revoked; the remaining indictment charged the Appellant with one count of driving under the influence, sixth offense, and one count of reckless driving. Apparently, the two indictments were joined pursuant to Tenn. R.Crim.P. 8(a). Prior to trial, the Appellant moved to sever the charge of driving while license revoked from the charges of driving under the influence and reckless driving due to the prejudicial impact of the "pre-textual charge of driving while license suspended." The trial court denied the motion.

The Appellant now contests this ruling, relying solely upon this court's holding in State v. Fleece, 925 S.W.2d 558 (Tenn. Crim.App.1995). We do not find this court's prior holding dispositive of the issue sub judice. In Fleece, the defendant was charged with driving under the influence and reckless driving; he was not charged with driving on a restricted license. A panel of this court held that evidence of the defendant's restricted license before the jury was error under Tenn.R.Evid. 404(b). Fleece, 925 S.W.2d at 561. This is not the issue presently before this panel.

On appellate review, this court will not reverse a trial court's decision concerning permissive joinder and severance of offenses pursuant to Tenn.R.Crim.P. 8 and 14 absent an abuse of the trial court's discretion. See Spicer v. State, 12 S.W.3d 438, 442-443 (Tenn.2000) (citing State v. Shirley, 6 .S.W.3d 243, 247 (Tenn.1999)). Accordingly, this court will not interfere with a trial court's ruling unless the "court applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining." Id. (citations omitted).

The indictments in the present case were joined pursuant to Tenn.R.Crim.P. 8(a), requiring mandatory joinder of offenses where the offenses are based upon the same conduct or arise from the same criminal episode. Notwithstanding mandatory joinder, the trial court retains discretion to grant a severance of the offenses under some circumstances. See Shirley, 6 S.W.3d at 246, n. 3. Rule 14(b)(2) provides for severance of charges joined under Tenn.R.Crim.P. 8(a):

(i) If before trial on motion of the state or the defendant it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense.

(ii) If during trial with consent of the defendant it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court shall consider whether, in light of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

(iii) If the Court finds merit in both a motion by the district attorney general for a continuance based upon exigent circumstances that temporarily prevent the state from being ready for trial of the joined prosecutions and an objection by the defendant to the continuance based on a demand for speedy trial....

Tenn.R.Crim.P. 14(b)(2). The trial court's refusal to grant a severance under Tenn. R.Crim.P. 14(b)(2) will not be reversed unless the Appellant was prejudiced by the decision to try the charges together. State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim.App.1982). We conclude from the evidence contained in the record that the Appellant suffered no prejudice from the joinder of the offenses. Accordingly, we find that the trial court did not abuse its discretion in denying severance of the offenses. This issue is without merit.

II. Revocation of Non-Resident Driving Privileges

There is no dispute that, effective March 23, 1995, the State of Tennessee revoked the Appellant's privilege to drive a motor vehicle upon the highways of this state for a period of one year. At this time, the appellant was a Mississippi resident and possessed a Mississippi driver's license. The revocation period in Tennessee expired on March 23, 1996. On July 8, 1997, the Appellant obtained a valid driver's license from the State of Mississippi, his state of residency. The Appellant's arrest on the instant offenses occurred on July 8, 1997, one year, three months and ten days after the expiration of his revocation period.

At the conclusion of the State's proof on this charge, the Appellant moved for a judgment of acquittal as to this count. The trial court denied the motion and, subsequently, the jury returned a guilty verdict as to the charge of driving while license revoked. The Appellant now contends that the trial court erred in denying his motion for judgment of acquittal as to this count. Specifically, he asserts that the revocation period expired on March 23, 1996, and he had obtained a valid Mississippi driver's license on July 8, 1997. Accordingly, he argues his Tennessee driving privileges had been automatically reinstated at the expiration of the revocation period. The State responds that a nonresident's driving privilege is not automatically reinstated in this State at the expiration of the revocation period or upon issuance of a valid driver license from his...