        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 20, 2016

              STATE OF TENNESSEE v. KENNETH EPPERSON

                Appeal from the Criminal Court for Sullivan County
                        No. S63141   R. Jerry Beck, Judge


                 No. E2015-00478-CCA-R3-CD – Filed May 18, 2015


The Defendant-Appellant, Kenneth Epperson, was charged by affidavit of complaint on
November 28, 2012, for driving under the influence (DUI) second offense, violation of
the open container law, violation of the implied consent law, driving on a revoked
license, and improper display of a license plate. See T.C.A. §§ 55-4-110, 55-10-401,
-406, -416, 55-50-504. Epperson entered guilty pleas to improper display of a license
plate and violating the open container law and was convicted by a jury as to the
remaining charges. On appeal, Epperson contends that the affidavit of complaint made
against him was void and that the State therefore failed to initiate a prosecution against
him within the statutory period. He contends that this error requires vacating his
convictions. He also challenges the sufficiency of the evidence supporting his DUI
conviction. Upon our review, we conclude that the evidence was sufficient to support
Epperson‟s conviction for DUI. However, we agree with Epperson that the State failed to
initiate a prosecution against him within the statutory period. Accordingly, we reverse
the judgments of the trial court and vacate Epperson‟s convictions.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                              Reversed and Vacated

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. NORMA MCGEE OGLE, J., concurring in results only.

Stephen M. Wallace, District Public Defender; Terry L. Jordan, Assistant Public
Defender, Blountville, Tennessee (on appeal); and Terry Risner, Mt. Carmel, Tennessee
(at trial), for the Defendant-Appellant, Kenneth Epperson.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and R. Benjamin Rowe,
Assistant District Attorney General, for the Appellee, State of Tennessee.
                                               OPINION

       On November 28, 2012, Epperson was stopped and arrested for various driving
related offenses, including driving on a revoked license, DUI, and violation of the
implied consent law. After transporting Epperson to jail, the arresting trooper swore out
an affidavit of complaint against Epperson in front of Durrell Lynn Wise, a notary public.
One week later, on December 5, 2012, Gayle Adams, a Sullivan County Clerk of Court,
made a probable cause determination based on the previously-sworn affidavit of
complaint. The affidavit of complaint listed a court date of January 8, 2013; however, the
record does not contain any information regarding whether Epperson appeared on this
day, or on any other day prior to his preliminary hearing. The preliminary hearing was
held on December 17, 2013, and Epperson‟s case was bound over to the Sullivan County
Grand Jury on February 7, 2014.1 The grand jury returned a presentment on March 26,
2014. On July 18, 2014, just before trial, Epperson entered guilty pleas to improper
display of a license plate and violating the open container law.

        During trial on the remaining charges, Trooper Robert Greer of the Tennessee
Highway Patrol testified that his license plate reader, an in-car computer system that
reads the numbers on vehicle license plates, alerted him that the owner of the car
Epperson was driving had a revoked license. Trooper Greer did not observe any
improper operation of the car. After confirming that Epperson was driving the car and
that Epperson‟s license was revoked, Trooper Greer initiated a stop. Upon stopping the
car, Epperson exited and met the Trooper Greer next to his car. Trooper Greer
immediately noticed an odor of alcohol on Epperson‟s breath and that Epperson‟s eyes
were bloodshot and watery. He further observed an open container of alcohol inside
Epperson‟s car, which Epperson admitted to having been drinking. Epperson agreed to
four field sobriety tests and “performed poorly” on each test. Epperson was subsequently
placed under arrest and read the implied consent advisement form, with which he refused
to consent. A video of the stop and subsequent field sobriety tests was also played for the
jury.

         Following the above proof, the jury convicted Epperson as charged of driving on
a revoked license, DUI, and violating the implied consent law. On October 6, 2014, the
trial court sentenced Epperson to an effective sentence of eleven months and twenty-nine
days. This timely appeal followed.




        1
           From the record, it is unclear why Epperson did not have a preliminary hearing until over a year
after his arrest.

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                                       ANALYSIS

       I. Statute of Limitations. On appeal, Epperson contends that his convictions
should be vacated because the State failed to commence a prosecution against him within
the one-year statutory period. Specifically, Epperson argues that the affidavit of
complaint was insufficient to commence a prosecution because it was sworn before, and
signed by, a notary public, rather than a clerk, judge, or judicial commissioner as required
by Rules 3 and 4 of the Tennessee Rules of Criminal Procedure. He further claims that
the presentment returned by the grand jury was also invalid because it occurred on March
26, 2014, more than a year after the alleged offense. The State responds that the affidavit
of complaint was effective in commencing a timely prosecution. Upon our review, we
agree that the affidavit of complaint was void because it did not comply with Rules 3 and
4 of the Tennessee Rules of Criminal Procedure. We therefore hold that the convictions
must be vacated because the State failed to commence a prosecution within the statutory
period. See T.C.A. § 40-2-104.

       As a preliminary matter, Epperson failed to raise this issue pretrial, at trial, or in
his motion for a new trial. Ordinarily, this would constitute waiver of this issue.
However, because we have previously held that the statute of limitations is not waived by
failure to raise an objection by pre-trial motion, nor by failure to include the issue in a
motion for new trial, see State v. Seagraves, 837 S.W.2d 615, 618 (Tenn. Crim. App.
1992), we will review this issue on the merits.

        In this case, Epperson was charged with only misdemeanor offenses. With some
exceptions not applicable here, “all prosecutions for misdemeanors shall be commenced
within twelve (12) months after the offense has been committed [.]” T.C.A. § 40-2-102.
The purpose of the limitations period “is to protect a defendant against delay and the use
of stale evidence and to provide an incentive for efficient prosecutorial action in criminal
cases.” State v. McCloud, 310 S.W.3d 851, 859 (Tenn. Crim. App. 2009) (citing State v.
Nielsen, 44 S.W. 3d 496, 499 (Tenn. 2001)). Furthermore, “[s]tatutes of limitations are
construed „liberally in favor of the criminally accused.‟” Id. (citing and quoting State v.
Ferrante, 269 S.W.3d 908, 911 (Tenn. 2008)). In order to determine whether the
prosecution is barred by the statute of limitations, we must first determine when the
prosecution was commenced.

       A prosecution is commenced, within the meaning of this chapter, by
       finding an indictment or presentment, the issuing of a warrant, binding over
       the offender, by the filing of an information as provided for in chapter 3 of
       this title, or by making an appearance in person or through counsel in
       general sessions or any municipal court for the purpose of continuing the

                                             -3-
      matter or any other appearance in either court for any purpose involving the
      offense.

T.C.A. § 40-2-104; see also Ferrante, 269 S.W.3d at 912.

       Our analysis requires examining the methods enumerated in the statute for
commencing a prosecution. Here, the evidence does not suggest, nor does the State
contend, that Epperson was charged by the filing of an information, the issuance of an
arrest warrant, or by indictment. Accordingly, we must determine whether a prosecution
was commenced by a presentment, by binding the defendant over to the grand jury, or by
general appearance, within the statutory period. Epperson had a preliminary hearing on
December 17, 2013, and was bound over to the grand jury on February 7, 2014. The
grand jury returned a presentment on March 26, 2014. All of these events occurred more
than a year after the date of the offense and therefore fall outside the one-year period in
which the State may prosecute a misdemeanor crime. Because the limitations period had
expired, these events are of no force in commencing a prosecution against Epperson.

        A prosecution may also be commenced by the defendant‟s appearance in court if
the underlying affidavit of complaint is valid. McCloud, 310 S.W.3d at 861 (citing
Ferrante, 269 S.W. 3d at 914-15). In their brief, the State appears to assert that the
affidavit of complaint was sworn to in front of the same person that made the probable
cause determination, Gayle Adams, a court clerk in Sullivan County. They claim that
Epperson failed to show that Adams was incapable of making a probable cause
determination and thus, failed to establish that the affidavit of complaint was void ab
initio. In our view, the State has missed the mark. The State either ignores or overlooks
the fact that the affidavit of complaint was not sworn before or signed by Adams, but
rather Durrell Lynn Wise, a notary public, and that Adams did not make a probable cause
determination until a week after the affidavit of complaint was sworn. These defects are
significant.

      Tennessee Rule of Criminal Procedure 3 governs affidavits of complaint and
provides as follows:

             The affidavit of complaint is a written statement alleging that a
      person has committed an offense and alleging the essential facts
      constituting the offense charged. The affidavit of complaint shall be made
      upon oath before a magistrate or a neutral and detached court clerk who is
      capable of the probable cause determination required by Rule 4.

Tenn. R. Crim. P. 3 (emphases added). Because the affidavit was sworn out before a
notary public, rather than a magistrate or a neutral and detached clerk of court capable of
                                            -4-
making a probable cause determination, the affidavit failed to comply with the mandatory
requirements of Rule 3 of the Tennessee Rules of Criminal Procedure, rendering it void
ab initio. Ferrante, at 913 (“Because the affidavit of complaint in this case was not made
before a magistrate or a neutral and detached court clerk . . . It was, therefore, void ab
initio[.]”). Accordingly, even if we were to assume that Epperson appeared at the
January 8, 2013 court date listed on the affidavit of complaint, his appearance did not
commence the prosecution or toll the statute of limitations. See id. at 915 (“A criminal
defendant‟s appearance in court upon a purported charging instrument that is void ab
initio does not serve to commence a prosecution under Tennessee Code Annotated 40-2-
104 so as to toll the running of the statute of limitations.”). Under these circumstances,
we conclude that the charges must be dismissed because the State failed to commence a
prosecution against Epperson within the statutory period by any of the methods
prescribed by statute.

       Upon determining that the State failed to commence a prosecution against
Epperson before the one-year statute of limitations period expired, we are forced to
conclude that the judgments against him must be vacated and the charges dismissed.
However, in the event of further appellate review, we will analyze Epperson‟s claim that
the evidence was insufficient to support his conviction for DUI.

        II. Sufficiency of the Evidence. Epperson challenges the sufficiency of the
evidence supporting his conviction for second offense DUI.2 Specifically, he contends
that the evidence was insufficient for a jury to find beyond a reasonable doubt that he was
operating a motor vehicle while impaired. The State asserts that the evidence is sufficient
to support Epperson‟s convictions.

        “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
When this court evaluates the sufficiency of the evidence on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the
sufficiency of the evidence, the standard of review applied by this court is “whether „any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011) (quoting Jackson
        2
            In his brief to this court, Epperson argues that the evidence was insufficient to support his
conviction for DUI only. Accordingly, any challenge to the sufficiency of the evidence of his other
convictions are waived. Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities or appropriate references to the record will be treated as waived in this court.”).
                                                   -5-
v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt.”

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “„is the same whether the conviction is based upon
direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the weight given to witnesses‟
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,
335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
Moreover, the jury determines the weight to be given to circumstantial evidence and the
inferences to be drawn from this evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence are questions primarily for the jury.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
When considering the sufficiency of the evidence, this court shall not substitute its
inferences for those drawn by the trier of fact. Id.

       The State was required to prove beyond a reasonable doubt that Epperson drove or
was “in control of any automobile or other motor driven vehicle on any of the public
roads and highways of the state . . . while . . . [u]nder the influence of any intoxicant[.]”
T.C.A. § 55-10-401(1). In support of this issue, Epperson argues that Trooper Greer did
not observe Epperson improperly operate his car prior to the stop and that his history of
knee and leg problems could account for his poor performance on two of the field
sobriety tests.

       Viewed in the light most favorable to the State, the evidence is sufficient to
support Epperson‟s conviction for DUI. Trooper Greer, the only witness at trial, testified
that he noticed an odor of alcohol on Epperson‟s breath immediately after the stop.
Epperson had bloodshot, watery eyes, an open container of beer in his car, and admitted
to drinking beer while driving and taking a Lortab pill earlier that morning. The jury was
able to assess Epperson‟s poor performance on each of the four field sobriety tests from
the video tape. Under these facts, we conclude that the evidence was sufficient to support
Epperson‟s conviction for DUI.




                                             -6-
                                 CONCLUSION

       Based on the forgoing reasoning and analysis, the evidence was sufficient to
support Epperson‟s conviction for DUI. However, we reverse and vacate the judgments
of conviction against Epperson because the State failed to commence a prosecution
against him within the one-year statute of limitations.


                                              _________________________________
                                              CAMILLE R. McMULLEN, JUDGE




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