                                                                                         07/16/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 7, 2019

      STATE OF TENNESSEE v. CEDRICK DEWAYNE WHITESIDE

                Appeal from the Circuit Court for Henderson County
                          No. 17221-3 Kyle Atkins, Judge
                     ___________________________________

                           No. W2018-01692-CCA-R3-CD
                       ___________________________________


Defendant, Cedrick Dewayne Whiteside, was found guilty of driving under the influence
of an intoxicant, criminal impersonation, driving on a cancelled, suspended, or revoked,
license, and failure to exercise due care. On appeal, he argues that the evidence presented
at trial was insufficient for the trier of fact to find him guilty of driving under the
influence of an intoxicant and for failure to exercise due care. In light of the evidence
presented, we uphold Defendant’s driving under the influence conviction but reverse and
dismiss the jury’s finding of failure to exercise due care.

                     Tenn. R. App. P. 3 Appeal as of Right;
 Judgment of the Circuit Court Affirmed in Part; Reversed and Dismissed in Part

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and D. KELLY THOMAS, JR., JJ., joined.

George Morton Googe, District Public Defender; and Hayley F. Johnson, Assistant
Public Defender, for the appellant, Cedrick Dewayne Whiteside.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Eric V.
Wood and Matthew A. Floyd, Assistant District Attorneys General, for the appellee, State
of Tennessee.

                                       OPINION

                                   Factual Background

       This case arises from Defendant’s arrest on April 14, 2017 following a single
vehicle wreck. Subsequently, the Henderson County Grand Jury charged Defendant with
the following five counts: count one, driving under the influence of an intoxicant in
violation of Tenn. Code Ann. § 55-10-401; count two, reckless endangerment in violation
of Tenn. Code Ann. § 39-13-103; count three, criminal impersonation in violation of
Tenn. Code Ann. § 39-16-301; count four, driving on a cancelled, suspended or revoked
license in violation of Tenn. Code Ann. § 55-50-504; and count five, failing to exercise
due care in violation of Tenn. Code Ann. § 55-8-136. Defendant’s reckless
endangerment charge was dismissed nolle prosequi prior to trial.

       Following a jury trial, Defendant was found guilty on all four counts presented to
the jury. The trial court ordered all of Defendant’s sentences to be served concurrently
with each other for a total effective sentence of eleven months and twenty-nine days.
Defendant did not file a motion for a new trial but filed an appeal to this Court on
September 17, 2018, challenging the sufficiency of the evidence presented to convict him
of driving under the influence and failing to exercise due care.

                                           Trial

        On April 14, 2017, between ten and eleven o’clock p.m., Trooper Douglas
Williams of the Tennessee Highway Patrol was dispatched to a single vehicle crash on
Interstate 40 in Henderson County. Prior to arriving on the scene, Trooper Williams was
assisting another motorist approximately a mile away, and a dash camera on his patrol
vehicle began recording as he left to investigate Defendant’s accident. The dash camera,
as well as the camera recording the activity in the back seat of the vehicle, was admitted
into evidence. After arriving upon the scene, Trooper Williams located Defendant’s Jeep
Cherokee on an embankment facing north off of the road. The vehicle had been traveling
west bound on Interstate 40 when it wrecked near the 104 mile-marker.

       Trooper Williams testified that after exiting his vehicle, he immediately
“check[ed] the crash scene to see if any injured persons [were] there.” Defendant was
standing near the vehicle, and a female passenger was stuck inside with the car, which
was still running. Trooper Williams determined Defendant to be the driver of the vehicle
because the trapped passenger was in the front right seat. Trooper Williams testified that
his main concern initially was to get her out of the vehicle because the “Jeep was
smoking” and he did not want her to “burn up in it[.]” Trooper Williams successfully
turned off the vehicle and shifted its gear into the park position. He explained that during
this process he noticed an open container of alcohol in the vehicle and determined that
the female passenger was intoxicated. Additionally, he testified that there was an odor of
alcohol coming from inside the car. The female passenger was removed from the vehicle
and received help from the emergency services at the scene.



                                           -2-
       After assisting with the trapped passenger, Trooper Williams began questioning
Defendant about the wreck. Trooper Williams testified that Defendant was “kind of
frantic” and “worked up.” He explained that he smelled an odor of an alcoholic beverage
coming from Defendant’s person. When asked about the wreck, Defendant explained
that another car had pulled out in front of him. However, Trooper Williams had no other
information that another vehicle was involved in the wreck. Trooper Williams asked
Defendant if he was injured, and Defendant initially responded that only his arm was in
pain.

        After inspecting his injury, Trooper Williams asked Defendant for his
identification. Defendant gave him false identification which was admitted into evidence
at trial. In addition, Trooper Williams asked Defendant if he had been drinking any
alcoholic beverages before the accident to which Defendant confirmed he had been
drinking about three hours prior to the wreck. This encounter was recorded on the dash
camera of the patrol vehicle while Trooper Williams and Defendant were standing in
front of the car.

        After their initial conversation, Trooper Williams attempted to administer a series
of sobriety tests to Defendant to determine if he was intoxicated. At trial, Trooper
Williams testified that he always asks a driver to complete three different sobriety tests,
and if an individual passes the tests, the individual is free to leave. Trooper Williams
asked Defendant to begin the walk and turn test. This test requires a defendant to walk
heel-to-toe for a certain length and then turn around to walk back in the same manner.
Initially, Defendant began the test, but failed to continue because he started complaining
of an injury to his hip. Trooper Williams testified that Defendant actually failed the
beginning stage of the test and such failure was an indicator of impairment. Trooper
Williams asked him to continue performing the sobriety test, but Defendant adamantly
refused, asserting that his injury prevented him from doing so. At this point, Trooper
Williams placed him under arrest.

       Trooper Williams testified that Defendant’s demeanor became “extremely
belligerent” after his arrest. He explained that Defendant began yelling “all kinds of
things” such as expletives and racial comments towards both Trooper Williams and
members of the emergency services. Trooper Williams testified that he tried to explain
Tennessee’s Implied Consent Advisement to Defendant, but Defendant continued
“screaming and yelling at [him] so loud[ly] [he did not] know if [Defendant] heard it or
not.” The consent form was recited at trial and admitted into evidence as an exhibit. It
reads as follows:

       If you refuse to supply a sample for breath or blood testing, no test will be
       conducted unless required by law or authorized by a search warrant or
                                           -3-
       exigent circumstances. If you do not consent the law permits me to apply
       for a search warrant for blood/or breath sample for chemical testing. If you
       do refuse to provide a sample for testing, and the Court finds that you
       refused, T.C.A. 55-10-407 requires that your license will be suspended for
       a least one year and up to five years, depending on your driving history. If
       you refuse you may be ordered to install and keep an ignition interlock on
       your vehicle for a year or more.

Trooper Williams confirmed reading the advisement to Defendant and testified that
Defendant “continued cussing” at him instead of signing the form. This conversation was
recorded by the camera facing the backseat of the patrol car.

        Trooper Williams testified that Defendant is also seen on camera removing his
wallet from his pants. Trooper Williams stated that he searched his car after Defendant’s
arrest and found Defendant’s accurate identification stuffed under the seat. He explained
that the identification “just didn’t fall in there, it was stuffed in there.” In addition, this
identification was different than the one that Defendant had given to Trooper Williams in
their initial conversation. With Defendant’s correct information, Trooper Williams
completed a driver’s license check and discovered that Defendant’s driver’s license was
revoked. A record from the Tennessee Department of Safety was entered into evidence
by the State to show his revoked status.

        Trooper Williams testified that during the transport to central booking, he could
smell an odor of alcohol coming from Defendant in the back seat. Further, Trooper
Williams testified that patrol car footage shows Defendant kicking the back doors of the
car after arriving at the station.

        On cross-examination, Trooper Williams explained that he had worked one-
vehicle crashes before and that he only recalled a few of those accidents involving
alcohol. He further explained that he had not seen the accident actually occur but
believed it was serious enough for Defendant’s car to physically roll. Additionally, he
testified it was not raining the night of the accident but he could not recall if it had rained
earlier in the day.

        In addition, Trooper Williams testified that Defendant did not seem to be
staggering or swaying. He confirmed that Defendant’s cognitive abilities appeared to be
intact and that Defendant attempted to comply with his orders. When asked about his
frustration with Defendant’s hip injury, Trooper Williams testified that Defendant had not
mentioned his hip hurting until he was asked to perform the walk and turn test. Trooper
Williams further explained that “it’s normal for someone once they know they’re going
to be tested, if they’re under the influence to try to get their way out of it to make up
                                             -4-
things.” He also acknowledged that drinking hours prior to driving was insufficient by
itself to prove the offense of driving under the influence. He recognized that the degree of
intoxication has to rise to the level of preventing someone from safely driving. He also
conceded that he did not conduct a blood or breath test on Defendant and did not take the
container of alcohol from Defendant’s vehicle into evidence.

       Following Trooper Williams’ testimony, the defense called Mr. Donald McCaslin
to the stand to testify to Defendant’s prior attendance in behavioral classes. Mr.
McCaslin explained that he was a former preacher who taught classes in the prison
community and that Defendant attended some of the classes he provided. Mr. McCaslin
believed that Defendant attended “Managing My Anger,” “Sense of Self,” and
“Substance Abuse.” Additionally, he confirmed that Defendant received a certificate in
some of those classes. Mr. McCaslin did not believe that Defendant completed the
“Substance Abuse” class but had attended some of the sessions.

        Mr. McCaslin clarified that Defendant received certificates in “Attitudes and
Behavior” and “Managing My Anger.” He also reconfirmed his belief that Defendant
participated in some of the sessions on “Substance Abuse” but that he did not receive a
certificate for it like the other two classes.

                                       ANALYSIS

       On appeal, Defendant challenges the sufficiency of the evidence presented at trial
to support his convictions of driving under the influence and failing to exercise due care.
The State contends that the evidence presented was sufficient for the trier of fact to find
Defendant guilty of both counts. In addition to the aforementioned claims, Defendant
argues that there was insufficient evidence for the trier of fact to find him guilty of
reckless endangerment. However, the reckless endangerment charge was dismissed. In
regard to Defendant’s convictions of driving under the influence and failing to exercise
due care, we affirm in part and reverse in part.

        The standard for appellate review of a claim challenging the sufficiency of the
State's evidence 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 (1979); see Tenn. R.
App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a
claim of insufficient evidence, a defendant must demonstrate that no reasonable trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction
is predicated on direct or circumstantial evidence, or a combination of both. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
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       On appellate review, “we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

        This court presumes that the jury has afforded the State all reasonable inferences
from the evidence and resolved all conflicts in the testimony in favor of the State; as
such, we will not substitute our own inferences drawn from the evidence for those drawn
by the jury, nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at
379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984). Because a jury conviction removes the presumption of innocence that appellant
enjoyed at trial and replaces it with one of guilt at the appellate level, the burden of proof
shifts from the State to the convicted appellant, who must demonstrate to this court that
the evidence is insufficient to support the jury's findings. Davis, 354 S.W.3d at 729
(citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

                                Driving Under the Influence

        Defendant argues that the evidence presented at trial is insufficient to support his
driving under the influence conviction because the State could not prove that Defendant
was under the influence of any intoxicant, and Defendant’s injuries rendered him unable
to perform the field sobriety tests. The State contends that the evidence presented from
Trooper Williams, the smell of alcohol that emitted from Defendant, Defendant’s failure
and refusal to complete the field sobriety tests, and Defendant’s belligerent behavior is
sufficient for a jury to find him guilty of driving under the influence. We agree with the
State.

As pertinent to our review, code section 55-10-401 provides:

       It is unlawful for any person to drive or be in physical control of any
       automobile or other motor driven vehicle on any of the public roads and
       highways of the state . . . while under the influence of any intoxicant, . . .
       substance affecting the central nervous system, or combination thereof that
       impairs the driver’s ability to safely operate a motor vehicle by depriving
       the driver of the clearness of mind and control of oneself that the driver
       would otherwise possess.
                                            -6-
Tenn. Code Ann. § 55-10-401 (West).

        In the light most favorable to the State, the evidence shows that Defendant was
driving under the influence at the time of his accident. In the beginning of Trooper
Williams’ investigation into Defendants’ wreck, he noticed that there was an open
container of alcohol in the vehicle, and he smelled alcohol on Defendant when their
conversation began. Additionally, Defendant admitted to the officer that he had been
drinking three hours prior to the wreck. Defendant was asked to complete three field
sobriety tests. When asked to perform the walk and turn test, Defendant failed the initial
part and then refused to continue performing the test. Defendant began complaining of
an injury to his hip that he had not mentioned prior to beginning the test. The dash
camera footage shows Defendant struggling to maintain his balance at the beginning of
the walk and turn test and then adamantly refusing to continue walking. A reasonable
trier of fact could find that this was due to his level of intoxication and not because of a
hip injury.

       Lastly, a jury could legitimately find that Defendant’s behavior following his
arrest was due to his level of intoxication. Defendant showed an outburst of “belligerent”
behavior towards Trooper Williams after being arrested and continued to do so during his
time in the patrol vehicle. Camera footage from inside the vehicle showed Defendant
yelling at Trooper Williams and calling him inappropriate names. The footage also
showed Defendant kicking the patrol car doors while he was waiting to be taken into
central booking. Even though Mr. McCaslin testified as to Defendant’s anger problems,
presumably while sober, to discredit intoxication as a cause of Defendant’s behavior, the
jury chose to believe Trooper Williams’ testimony that Defendant was intoxicated
enough to impair his ability to safely operate a motor vehicle. This Court does not
question or reweigh the credibility of witnesses or the evidence presented. Bland, 958
S.W.2d at 659. This is sufficient evidence for a jury to conclude that Defendant was
unable to safely operate a motor vehicle due to his level of intoxication. Therefore, a
reasonable trier of fact could find beyond a reasonable doubt that Defendant was guilty of
driving under the influence.

                              Failure to Exercise Due Care

       Additionally, Defendant argues that there was insufficient evidence to find him
guilty of failing to exercise due care. Defendant asserts that this charge was based on the
flawed inferences drawn by the trier of fact to convict Defendant of driving under the
influence. The State contends that Defendant’s single-car crash that resulted in an
accident without any other vehicles involved or weather conditions was sufficient
evidence to find Defendant guilty of failing to exercise due care. While we disagree that
                                           -7-
there was insufficient evidence to find Defendant guilty of driving under the influence,
we agree that the State failed to prove all the elements of the failure to exercise due care
statute.

       Quoting directly from the statute, the “due care clause” provides:

       Notwithstanding any speed limit or zone in effect at the time, or right-of-
       way rules that may be applicable, every driver of a vehicle shall exercise
       due care by operating the vehicle at a safe speed, by maintaining a safe
       lookout, by keeping the vehicle under proper control and by devoting full
       time and attention to operating the vehicle, under the existing
       circumstances as necessary in order to be able to see and to avoid
       endangering life, limb or property and to see and avoid colliding with any
       other vehicle or person, or any road sign, guard rail or any fixed object
       either legally using or legally parked or legally placed, upon any roadway,
       within or beside the roadway right-of-way including, but not limited to, any
       adjacent sidewalk, bicycle lane, shoulder or berm.

Tenn. Code Ann. § 55-8-136 (b) (emphasis added). Count Five of the Indictment
substantially mirrors the language of the applicable statute:

       [B]y failing to operate vehicle at a safe speed, to maintain a safe lookout, to
       keep vehicle under proper control, and to devote full time and attention to
       operating the vehicle, under existing circumstances as necessary in order to
       be able to see and to avoid endangering life, limb, or property, in violation
       of § 55-8-136, Tennessee Code Annotated, all of which is against the peace
       and dignity of the State of Tennessee.

        It is the Court’s conclusion that our state legislature intended for the statute to
require each element to be proven with sufficient evidence, beyond a reasonable doubt, in
order to find a defendant in violation of failing to exercise due care. The primary
objective of statutory construction is to ascertain and give effect to the intent of the
legislature. Auto Credit of Nashville v. Wimmer, 231 S.W.3d 896 (Tenn. 2007). If a
statute is clear and unambiguous, courts will find that intent in the plain and ordinary
meaning of its language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn.
2007). Finding no ambiguity and looking at the plain and ordinary language of
Tennessee Code Annotated § 55-8-136(b), the elements are listed in a manner that
requires the State to prove that all of the listed requirements were violated in order to find
a defendant guilty of failing to exercise due care. State v. Cleveland, No. W2004-02892-
CCA-R3-CD, 2005 WL 1707975, at *3 (Tenn. Crim. App. July 21, 2005) (“When the
conjunctive conjunction “and” is used, each element so linked in the statute must be
                                            -8-
considered jointly to obtained the objectives of the statute”). In the present case, we find
that there is insufficient evidence to prove that Defendant was driving at an unsafe speed,
one of the elements required to prove failing to exercise due care. Trooper Williams was
not present at the time of the accident and was only a witness the events following the
wreck itself. Furthermore, the State has failed to put on any proof of the speed Defendant
was traveling when his car wrecked. Therefore, the evidence presented was insufficient
for a trier of fact to find Defendant guilty of failure to exercise due care. Defendant is
entitled to relief on this claim.

                                     CONCLUSION

       Based upon the foregoing analysis, we affirm Defendant’s conviction of driving
under the influence, but reverse the trial court’s holding that Defendant was failing to
exercise due care, and dismiss that count of the indictment with prejudice.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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