         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 22, 2005

             STATE OF TENNESSEE v. SCOTTIE D. PENNINGTON

                      Appeal from the Criminal Court for Jackson County
                            No. 03-98    John Wooten, Jr., Judge


                   No. M2005-00320-CCA-R3-CD - Filed February 28, 2006


The Appellant, Scottie D. Pennington, was convicted by a Jackson County jury of driving under the
influence (DUI) and felony reckless endangerment. As a result of these convictions, Pennington
received consecutive sentences of eleven months and twenty nine days for DUI and two years for
reckless endangerment. On appeal, Pennington argues that the evidence is insufficient to support
his convictions. Specifically, he asserts that the State failed to prove his identity as the driver of the
vehicle or that the vehicle was operated in a reckless manner. After review of the record, we affirm.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH , JJ., joined.

Michael R. Giaimo, Livingston, Tennessee, for the Appellant, Scottie D. Pennington.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Tom
P. Thompson, Jr., District Attorney General; and Tiffany Gipson, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                               OPINION

                                         Factual Background

         On the evening of September 30, 2003, around dusk, Officer Lee Dulworth, a deputy with
the Jackson County Sheriff’s Department, was on routine traffic patrol with Reserve Officer Jimmy
Stafford on Highway 85 near Hammock Road. Suspecting a possible DUI, they stopped a black
Surburban, and, in the process of speaking to the driver of this vehicle, they heard the squealing of
tires. Officer Dulworth testified, “I turned around real quick and seen this red Mustang that had front
end damage and one headlight, and he had locked his brakes and he was coming right toward me.”
Dulworth stated, “I thought it was going to hit me and my patrol car.” At trial, Officer Stafford
testified that he had seen the Appellant driving the same vehicle an hour and a half to two hours prior
to the incident.
       Dulworth’s signal for the vehicle to pull over was ignored. The Mustang continued down
Hammock Road with Dulworth in pursuit while Officer Stafford remained with the Surburban.
Dulworth described the driver of the Mustang as a male with dark hair wearing a baseball cap. The
vehicle proceeded at a speed of around fifty to fifty-five miles per hour. The road was narrow and
curvy and had a posted speed of twenty miles per hour. After determining that the Mustang had
Alabama tags, Dulworth concluded that the chase was too dangerous and returned to Officer
Stafford.

        Having received a partial Alabama tag number from a police dispatch, Dulworth and Stafford
renewed their search of the Mustang. They eventually located the vehicle parked at a residence on
Old Hamilton Road at the end of Stacy Cemetery Ridge. The two were familiar with the residence
from prior encounters with the Mustang. Dulworth recognized the vehicle because “it had the same
front end damage, had the same headlight out and had Alabama tags on it.” The hood of the car was
hot.

         The Appellant, along with several occupants, emerged from the residence. As he “stumbled
through the front door and pretty much fell and stumbled off the front porch,” the Appellant, who
was dark-haired, was wearing a baseball cap, blue jeans, and a t-shirt. He had a strong odor of
alcohol about his person and slurred his speech, and he carried a beer in his hand. He admitted to
having driven a red Mustang with Alabama tags and one headlight earlier that night but maintained
that it was a different vehicle than the one at the residence.

         Officer Dulworth identified the red Mustang as the vehicle that had almost hit him earlier and
testified that the Appellant matched the description of the driver of the red Mustang. The officers
arrested the Appellant around 9:15 P.M. and transported him to the Jackson County Sheriff’s
Department. The Appellant passed out during the car ride. Upon his arrival at the jail, the Appellant
refused to submit to a blood alcohol and drug test. Based upon these facts, the jury convicted the
Appellant of DUI and reckless endangerment with a deadly weapon.

                                                Analysis

        As a preliminary matter, the State contends that because the Appellant failed to file a timely
notice of appeal, the instant appeal should be dismissed. Rule 4 of the Tennessee Rules of Appellate
Procedure requires that a notice of appeal should be filed within thirty days after entry of the
judgment from which an appeal is sought. Rule 4(c) provides that in criminal cases, “if a timely
motion or petition under the Tennessee Rules of Criminal Procedure is filed in the trial court by the
defendant . . . under Rule 33(a) for a new trial [,]. . . the time for appeal for all parties shall run from
entry of the order denying a new trial.” In this case, the Appellant’s motion for new trial was denied
on November 23, 2004. The Appellant, however, did not file his notice of appeal until February 1,
2005, sixty-nine days after the trial court filed its order, thus, rendering it untimely. The timely filing
of a notice of appeal, however, is not a prerequisite to the jurisdiction of this court, and we may
waive the requirement in the interest of justice. Tenn. R. App. P 4(a). In this case, we waive the
timely filing requirement and address the issues raised by the Appellant.


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       On appeal, the Appellant asserts that the proof adduced at trial was not legally sufficient to
support his convictions. He contends that no direct proof was presented that he was the driver of the
Mustang and that the evidence fails to establish the elements of reckless endangerment with a deadly
weapon.

         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], 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); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

        Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”
State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn.
1985)). However, as in the case of direct evidence, the weight to be given circumstantial evidence
and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable
v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

        We are constrained to note that the Appellant, in his brief, challenges the sufficiency of the
evidence for his convictions of reckless endangerment, DUI, and driving on a suspended license.
Judgments of conviction for these three offenses are included in the record.1 While the DUI and
reckless endangerment offense were tried before a jury, the Appellant waived his right to a jury trial
for the offense of driving on a suspended license and submitted determination of his guilt or


         1
          The judgment of conviction for DUI reflects a seventh offense conviction. The Appellant was ineligible for
sentencing as a felony offender because none of his convictions occurred before July 1, 1998. See T.C.A. § 55-10-413(a)
(2003).

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innocence on this offense to the trial court. The trial of this proceeding is not included in the record.
Accordingly, any sufficiency review of this offense is waived, as there is no evidence for us to
review. Tenn. R. App. P. 24(c).

        With regard to the Appellant’s conviction for DUI, the proof established that Officer Stafford
had seen the Appellant driving the same car approximately an hour and a half earlier that day. The
car was discovered at a residence 2.6 miles from the scene only minutes after the incident, and its
hood was still hot. This vehicle was a red Mustang with a matching partial Alabama tag, a damaged
front end, and a headlight out. The Appellant, who emerged from the residence where the vehicle
was parked, matched the description of the driver of the vehicle. The Appellant admitted that he had
been driving a red Mustang but maintained that it was a different red Mustang from the one at the
residence. Both officers testified that the Appellant was intoxicated. This evidence, taken together,
is sufficient for a rational trier of fact to find that the Appellant was driving the red Mustang
observed by the officers on Highway 85 near Hammock Road while under the influence of an
intoxicant. See T.C.A. § 55-10-401(a) (2003).

        The Appellant also argues that the evidence is insufficient to support his conviction for felony
reckless endangerment with a deadly weapon. He asserts that no evidence was presented that anyone
was in any real danger of death or serious bodily injury. Felony reckless endangerment occurs when
a person using a deadly weapon “recklessly engages in conduct which places or may place another
person in imminent danger of death or serious bodily injury.” T.C.A. § 39-13-103 (2003) (emphasis
added). A deadly weapon is defined as “[a]nything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” T.C.A. § 39-11-106(5)(B) (2003). This court has
held that an automobile can constitute a deadly weapon within the meaning of Tennessee Code
Annotated section 39-11-106(5)(b). See State v. Scott W. Long, 03C01-9301-CR-00032 (Tenn.
Crim. App. at Knoxville, Aug. 19, 1993). In this case, the Appellant’s method of operating his
vehicle rendered it a deadly weapon. Officer Dulworth testified that the driver of the Mustang “had
locked his brakes up and he was coming right toward me.” He added that he feared, “it was going
to hit me and my patrol car.” Based upon the Appellant’s conduct and Dulworth’s belief of
imminent danger of bodily injury, we conclude that a jury could rationally find that the Appellant
was guilty of reckless endangerment with a deadly weapon.

                                           CONCLUSION

       Based on the foregoing, we conclude that the evidence is sufficient to support the Appellant’s
jury convictions for DUI and felony reckless endangerment.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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