         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON              FILED
                         MAY 1999 SESSION
                                                     July 12, 1999

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    NO. 02C01-9810-CC-00336
      Appellee,                 )
                                )    MADISON COUNTY
VS.                             )
                                )    HON. ROY B. MORGAN, JR.,
DELFRO WILLIS,                  )    JUDGE
                                )
      Appellant.                )    (Driving Under the Influence)



FOR THE APPELLANT:                   FOR THE APPELLEE:

MIKE MOSIER                          PAUL G. SUMMERS
P.O. Box 1623                        Attorney General and Reporter
204 West Baltimore
Jackson, TN 38302-1623               J. ROSS DYER
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     JAMES G. (JERRY) WOODALL
                                     District Attorney General

                                     SHAUN A. BROWN
                                     Assistant District Attorney General
                                     P.O. Box 2825
                                     225 Martin Luther King Dr.
                                     Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       A Madison County jury convicted defendant of driving under the influence of

an intoxicant. In this appeal as of right, defendant raises two issues for review:

       (1)    whether there was sufficient evidence to convict him of
              driving under the influence; and

       (2)    whether the trial court erred by failing to require the
              state to elect which count of the indictment to submit to
              the jury.

We conclude the evidence was sufficient to support defendant’s conviction, and that

the trial court committed no reversible error in failing to require an election by the

state. The judgment of the trial court is AFFIRMED.




                                       FACTS



       On his way to a friend’s house to watch football, defendant stopped and

bought a small bottle of liquor. He opened the bottle and started to drink the alcohol

in route. Defendant lost control of his car and skidded onto the property of A.D.

Beard. In the process, he hit Beard’s mailbox and car. Beard’s son, Joseph Miller,

looked out the door in time to see defendant’s car pull away with two flat tires.



       Miller gave the police a description of the car. Officer Barry Austin spotted

the car a short time later throwing sparks from the rim of a flat tire. He also noted

damage to the passenger side. Officer Austin stopped the car and determined

defendant to be the driver. Miller went to the location of the stop and positively

identified the car as the one that left the Beard property.



       While talking to defendant, Officer Austin noticed an odor of alcohol and

found an empty liquor bottle in the car’s front seat. Defendant slurred his speech,

appeared unsteady on his feet, and frequently rested against the side of the car.

Based upon these observations, the circumstances surrounding the stop, and the

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evidence found in the car, the officer believed defendant was impaired. He placed

defendant under arrest and transported him to the police station. At the station,

defendant submitted to a breathalyser test which registered a blood alcohol level of

.10%.



        The state charged defendant with DUI in two separate counts of the

indictment. It based count one on Tenn. Code Ann. § 55-10-401(a)(1) due to

defendant’s impairment; and count two on Tenn. Code Ann. § 55-10-401(a)(2) due

to the .10% alcohol concentration in his blood. The jury found defendant guilty on

count one and not guilty on count two.




                         SUFFICIENCY OF THE EVIDENCE



        Defendant charges there was insufficient evidence to convict him of driving

under the influence. Specifically, he avers that the officer’s minimal observations

of an alcoholic odor, slurred speech, and unsteadiness form the only evidence

against him in light of the jury’s acquittal on count two of the indictment.1



        In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts

in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may

be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Moreover, a guilty verdict removes the presumption of innocence which the

appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.



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         Defendant’s brief emphasizes that Officer Austin could not articulate how
defendant performed on field sobriety tests. The record shows that another officer
administered field sobriety tests. Officer Austin could not remember the details of those
tests and was not allowed to testify as to their results.

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Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of

overcoming this presumption of guilt. Id.



         Defendant contends that the jury’s acquittal on count two must be considered

in determining defendant’s guilt in count one. First, we note that the acquittal on

count two is not necessarily inconsistent with a finding of guilt in count one since a

defendant’s blood alcohol level is not an element under Tenn. Code Ann. § 55-10-

401(a)(1).     However, even if the verdicts were inconsistent, any seeming

inconsistency is irrelevant since each count is considered a separate indictment and

consistency is not required.        Wiggins v. State, 498 S.W.2d 92, 93 (Tenn.

1973)(citations omitted); State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App.

1992).



         Further, defendant infers that Officer Austin improperly based his

determination of intoxication on defendant’s involvement in an accident. His brief

states, “[i]t is probable that the fact of the accident shaded or influenced [Officer

Austin’s] observations of the Defendant.”



         Officer Austin received a report of a hit and run accident. A short time later,

he observed defendant driving a vehicle with a flat tire shooting sparks as the rim

scraped the pavement. When he talked to defendant, he smelled alcohol, heard

slurred speech, and observed an unsteady demeanor. The officer was entitled to

consider knowledge of defendant’s accident when making the initial stop. See, Terry

v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v.

Simpson, 968 S.W.2d 776, 780 (Tenn. 1998); State v. Watkins, 827 S.W.2d 293,

294 (Tenn. 1992). Furthermore, the fact that the defendant ran off the road is

relevant to the issue of impairment.



         Based on the above, we conclude a rational trier of fact could determine that

the state sufficiently established defendant’s guilt beyond a reasonable doubt. This



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issue is without merit.




                            ELECTION OF OFFENSES



       Defendant assigns as error the trial court’s failure to require the state to elect

which DUI count to submit to the jury at the close of the proof. As previously stated,

the state charged defendant in a multi-count indictment alleging alternative theories

in counts one and two.



       Requiring election among offenses by the state protects defendants from

double jeopardy and insures a unanimous jury verdict. See generally, State v.

Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Phillips, 924 S.W.2d 662, 664

(Tenn. 1996); State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993); Burlison v.

State, 501 S.W.2d 801, 804 (Tenn. 1973). The double jeopardy clause protects

defendants from second prosecutions for the same offense and multiple

punishments for the same offense. Phillips, 924 S.W.2d at 664; State v. Prater,

C.C.A. No. 01C01-9710-CC-00499, Coffee County (Tenn. Crim. App. filed February

16, 1999, at Nashville)(citations omitted), perm. to appeal filed 4/16/99.



       This defendant faced no danger of double jeopardy. A jury verdict convicting

a defendant of ordinary DUI under Tenn. Code Ann. § 55-10-401(a)(1) and DUI with

a blood alcohol content of .10% or higher under § 55-10-401(a)(2) does not

constitute two separate convictions and only authorizes a single judgment of

conviction. See State v. Powers, C.C.A. No. 02C01-9808-CC-00242, Fayette

County (Tenn. Crim. App. filed April 19, 1999, at Jackson)(citing generally State v.

Denton, 938 S.W.2d 373, 378-83 (Tenn. 1996)).              Additionally, the transcript

revealed the trial court’s intent to merge both counts in the event of dual convictions

by the jury. Just as premeditated first degree murder and felony first degree murder

may be submitted to the jury without an election, see State v. Cribbs, 967 S.W.2d



                                           5
773, 788 (Tenn. 1998), ordinary DUI and .10% DUI may be submitted to the jury

without an election.



       Furthermore, there was no danger of a non-unanimous jury verdict. The jury

reported a unanimous verdict as to each count.



       The trial court did not err by refusing to require an election by the state. This

issue is without merit.




                                   CONCLUSION



       Based upon the foregoing, the judgment of the trial court is AFFIRMED.




                                                 ____________________________
                                                  JOE G. RILEY, JUDGE




CONCUR:



____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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