             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                           SEPTEMBER 1998 SESSION
                                                         November 6, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,                  )
                                     )   C.C.A. NO. 03C01-9707-CR-00284
             Appellee,               )
                                     )   McMINN COUNTY
VS.                                  )
                                     )   HON. CARROLL L. ROSS,
ALBERT L. McCOWAN                    )   JUDGE
                                     )
             Appellant.              )   (DUI; DORL)



FOR THE APPELLANT:                       FOR THE APPELLEE:


JULIE A. MARTIN                          JOHN KNOX WALKUP
P.O. Box 426                             Attorney General & Reporter
Knoxville, TN 37901-0426
      (On Appeal)                        MICHAEL J. FAHEY, II
                                         Asst. Attorney General
CHARLES CORN                             John Sevier Bldg.
District Public Defender                 425 Fifth Ave., North
                                         Nashville, TN 37243-0493
THOMAS KIMBALL
Asst. District Public Defender           JERRY N. ESTES
110-1/2 Washington Ave., Northeast       District Attorney General
Athens, TN 37303
       (At Trial)                        RICHARD NEWMAN
                                         Asst. District Attorney General
                                         P.O. Box 647
                                         Athens, TN 37303-0647



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              A jury convicted the defendant of driving under the influence of an intoxicant

(DUI), third offense, and driving on a revoked license (DORL), seventh offense. Following

a sentencing hearing, the trial court sentenced the defendant to two consecutive terms

of eleven months and twenty-nine days in jail, the first term to be served at seventy-five

percent (75%) and the second term to be suspended after service of forty-five days. The

defendant now appeals, presenting the following issues for review:

       I. Whether the evidence was sufficient to prove beyond a reasonable doubt
       that the defendant drove on a public roadway;

       II. Whether the trial court erred in failing to grant a mistrial after the
       arresting officer testified to the defendant’s prior run-ins with other officers
       and the defendant’s prior DUI conviction; and

       III. Whether the trial court improperly sentenced the defendant.

After a review of the record and the applicable law, we affirm.



              Near midnight on February 28, 1997, Charlene Anderson heard an engine

“revving” loudly in her backyard. Within a few seconds, she and her daughter looked out

the back door and saw a man who was later identified as the defendant slumped behind

the wheel of a car that had been driven into their backyard. The defendant’s car was

resting in a soft, grassy area, facing the Andersons’ gravel driveway. The area was

marked by one set of tire tracks, indicating that the defendant had spun around or backed

up in the yard and was attempting to return to the Andersons’ gravel driveway before

getting stuck in the mud. The only manner of entering or exiting the Andersons’ backyard

was from McMinn County Road 274 down the Andersons’ gravel driveway; all other

access to the backyard was blocked by barbed wire fencing.



              Mrs. Anderson’s husband and her son, Nick, attempted to wake the

                                              2
defendant. The defendant’s only response was mumbling. When Nick smelled alcohol

on the defendant’s breath, he removed the keys from the ignition in the defendant’s car.

Nick, who worked part-time as a local police officer, had “no doubt” that the defendant

was “dead drunk.”



              Deputy Brad Lane of the McMinn County Sheriff’s Department and another

officer responded to the scene. Deputy Lane attempted to wake the defendant by

shaking him several times and talking loudly to him. At first, the defendant was not very

responsive. Finally, the defendant stirred and, with some assistance from the officers,

exited his vehicle, which smelled like alcohol and was littered with a couple of empty beer

bottles. The defendant did not appear to know what was happening or where he was and

seemed rather unresponsive. However, when asked what he was doing there, the

defendant responded that he was at his own home, which, in reality, was a couple of

miles away. When asked for identification, the defendant produced a state identification

card rather than a driver license. A records search revealed that the defendant’s driver

license had been revoked.



              The defendant was unsteady on his feet, had trouble walking on his own

power, took little interest in what was happening around him, and had slurred speech,

and very red, glossy eyes. Deputy Lane attempted to administer a field sobriety test to

the defendant, but he was not responsive. Based on his observances of the defendant,

Deputy Lane placed the defendant under arrest for DUI and transported him to the local

hospital for a blood test. En route to the hospital, the defendant agreed to submit to a

blood test, but once at the hospital, the defendant became belligerent and refused to

comply. At no time did the defendant exhibit any signs of injury or complain he was hurt

or in pain.



                                            3
              At trial, the defendant testified that he had quit drinking alcohol in October

1996 because of his history of DUI and DORL charges. According to the defendant, on

the night of February 28, 1997, he had visited a bar in Sweetwater with his friends Billy

Plemons and Rhonda Spurgeon, who had been acting as designated driver. At the bar,

he met up with Scotty Anderson, Charlene Anderson’s son, who lives in a trailer near the

Andersons’ home. The defendant testified he had been hit in the head by an unknown

assailant before entering the bar, presumably because it was an “all-white” bar and the

defendant, who is black, was not refused entry. He contended that Rhonda then drove

the defendant to the Andersons’ yard and left him in his car while Scotty drove Rhonda

and Billy home in his own car. Scotty was to return home “shortly,” but the defendant did

not see him again that evening. He could not remember how long he had been in the

Andersons’ backyard because, according to him, the injury to his head caused so much

pain that he passed out. He claimed that he had told Deputy Lane he was injured, but

that Deputy Lane paid no attention to him. He also claimed that the engine Mrs.

Anderson heard must have been her son’s car engine as he left to drive Rhonda and Billy

home. Further, he claimed he had spoken with his girlfriend, who works at the local

hospital, and because his girlfriend told him that no one had seen him at the hospital that

evening, he believed Deputy Lane never took him to the hospital or requested he take a

blood test. He denied ever driving or attempting to drive his car that evening.



              No witnesses corroborated the defendant’s testimony. During his testimony,

the defendant claimed that Rhonda had not wanted to testify and he had not asked her

to testify. He also claimed that because he had been incarcerated prior to trial, he did not

“have the means” to ask Scotty to testify on his behalf.



              Based on this evidence, the jury found the defendant guilty as charged and



                                             4
recommended a fine of one thousand five hundred dollars ($1500) for DUI and five

hundred dollars ($500) for DORL. Upon being presented with certified copies of two prior

DUI convictions and six prior DORL convictions, the jury found the defendant guilty of

third offense DUI and seventh offense DORL, modifying their recommended fines to

seven thousand dollars ($7000) and three thousand dollars ($3000), respectively.



              The sentencing hearing was held immediately following trial, with no

objection from the defendant. At the sentencing hearing, the defendant testified he was

currently incarcerated in county jail for possession of marijuana. On the third offense DUI

count, the trial court sentenced the defendant to eleven months and twenty-nine days

incarceration at seventy-five percent (75%), to run consecutively to the term the

defendant was currently serving for drug possession. On the seventh offense DORL, the

trial court sentenced the defendant to a consecutive eleven month, twenty-nine day

incarceration term, to be suspended after serving forty-five days. The trial court also

imposed a total of ten thousand dollars ($10,000) in fines, as recommended by the jury.

The defendant now appeals.



              The defendant first contends that the evidence presented at trial was

insufficient to prove beyond a reasonable doubt that he drove while under the influence.

Specifically, the defendant contends that the State failed to prove he drove or was in

physical control of an automobile on a public roadway. We disagree.



              In order to convict an individual of driving under the influence, the State

must prove that while under the influence of an intoxicant, the individual drove or was in

“physical control” of a motor vehicle on any public road or premises “generally frequented

by the public at large.” See T.C.A. § 55-10-401(a). In this case, the State presented



                                            5
circumstances warranting the jury’s conclusion that the defendant had been driving the

car or had physical control of the vehicle on a public roadway. As the Tennessee

Supreme Court has stated, “driving” may be established by circumstantial evidence:

       [I]t was plaintiff in error’s car; he was in it, drunk and asleep at the wheel;
       it must have been driven on the road to the point where it was found; in the
       absence of anything to suggest that this might have been done by
       someone else, it is reasonable to infer that it was done [the car was driven]
       by plaintiff in error.

Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1961). “Physical control” of a

vehicle (the alternate way of violating T.C.A. § 55-10-401) may be proven by evidence

that the defendant was found alone behind the wheel of his car with the keys and---but

for his intoxication---had the present ability to operate, move, or control the car. State v.

Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993).



              Here, Charlene Anderson testified she had heard a car racing its motor in

her backyard, and upon immediate investigation, she had discovered the defendant

slumped over the steering wheel of his car, which was resting in her backyard. The keys

were found in the ignition, and no one else was seen near the car. Marks on the ground

indicated that the defendant’s car had been driven from the Andersons’ gravel driveway

and had spun around before becoming stuck. The Andersons’ backyard is accessible by

car only by their gravel driveway and McMinn County Road 274. The defendant does not

dispute that McMinn County Road 274 is a “public roadway.”



              While the defendant testified that someone else had driven him to the

Andersons’ backyard that evening but had left before being detected, the jury was within

their prerogative to disregard his version of events. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Thus, the evidence was sufficient for the jury to conclude that the

defendant had been driving or was in physical control of his vehicle that evening. See



                                             6
Lawrence, 849 S.W.2d at 765; Farmer, 343 S.W.2d at 897. Moreover, because the

defendant’s car “must have been driven on the road to the point where it was found,” the

only reasonable explanation provided by the evidence is that the defendant’s car had

been driven on McMinn County Road 274, a public road, before it was driven down the

Andersons’ gravel driveway and into their backyard. See id. Therefore, taking the

evidence in the light most favorable to the State, we conclude that a rational trier of fact

could have found the defendant guilty beyond a reasonable doubt of driving on a public

roadway while under the influence of an intoxicant. See T.C.A. § 55-10-401(a); Jackson

v. Virginia, 443 U.S. 307, 319 (1979); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).



              Next, the defendant contends the trial court should have granted a mistrial

in response to Deputy Lane’s testimony. On direct examination, Deputy Lane testified

that he knew the defendant “through previous encounters.” A couple of minutes later,

when asked about the defendant’s demeanor, Deputy Lane stated, “He called me several

different, by several different other officers’ names, three or four different officers that

work in the sheriff’s department that have evidently must have had some kind of dealing

with him in the past.” The defense attorney objected, but the prosecutor continued to

question Deputy Lane. When defense counsel asked for a ruling on his objection, the

trial court cautioned Deputy Lane to testify only regarding what the defendant said to him,

but not to offer his opinions about what the defendant had said.



              Questioning resumed. The State asked Deputy Lane what he discovered

when he ran a check to determine the status of the defendant’s driver license. Deputy

Lane responded, “So through a check with the dispatcher, it was revealed that his driver’s

[sic] license are [sic] revoked for a DUI conviction.” Defense counsel again objected.



                                             7
During a bench conference, the trial court stated that the appropriate cure would be an

instruction, but defense counsel stated, “I think the only cure in this situation is to stop.”

The trial court refused to “give a mistrial for that single comment,” stating, “I think

everybody kind of knows if you get revoked it’s probably over a DUI.” No curative

instruction was ever given.



                  On appeal, the defendant claims that mentioning the defendant’s prior

relations with law enforcement officers and prior conviction for DUI resulted in prejudicial

error. The defendant further contends that the trial court should have granted a mistrial

due to the cumulative effect of so many prejudicial errors in such a short time.1



                  As the trial court cautioned during Deputy Lane’s testimony, the testimony

that the defendant referred to him by other names was admissible, but the reason why---

that the defendant must have had “past dealings” with other officers---was not. It was

also improper for Deputy Lane to gratuitously explain that the defendant’s license was

revoked for a DUI conviction. Because of such improper testimony, the State came

dangerously close to a mistrial.



                  Even though Deputy Lane’s comments were erroneous, however, we find

them harmless under the circumstances. 2 Considering the record as a whole, the

evidence of the defendant’s guilt is so overwhelming that even without the evidentiary

         1
          In his brief, the defendant also mentions, in passing, that the trial court should have at least
given a curative instruction. However, the defendant failed to request a curative instruction during trial
and failed to raise this issue in his motion for a new trial. Thus, whether the trial court should have given
a curative instruction is waived fo r appellate r eview. See, e.g., T.R.A.P . 3(e); State v. McPherson, 882
S.W .2d 365 ( Tenn . Crim. A pp. 1994 )(failure to re quest c urative instru ction waive s issue) ; State v.
Spadafina, 952 S.W.2d 444, 451 (Tenn. Crim. App. 1996)(issue of whether lesser included instruction
should have been given is waived unless included in motion for new trial).

         2
          The defendant argues that under T.R.A.P. 36(b), the resulting error “should not be deemed
harm less erro r in light of the pr ejudice to the judicial pro cess w hich res ults when this type of ac tivity
occ urs.” W e disa gree beca use the e rror in volve d in this cas e wa s not of the type w hich resu lts in
“prejudice to the judicial process.” See T.R.A.P. 36(b) & cm t (b).

                                                          8
errors, it is beyond a reasonable doubt that the outcome of the trial would be the same.

See T.R.A.P. 36(b); see also State v. Walker, 910 S.W.2d 381 (Tenn. 1995)(felony

murder conviction upheld in light of overwhelming evidence of guilt and despite

improperly admitted evidence). Accordingly, we affirm the defendant’s convictions.



              The defendant also complains about the sentence imposed by the trial

court. First, he complains “there was only a perfunctory hearing commenced immediately

after the jury was excused.” Separate sentencing for misdemeanor charges is not

necessary. T.C.A. § 40-35-302(a). However, if the trial court does not conduct a

separate sentencing hearing, it must “allow the parties a reasonable opportunity to be

heard on the question of the length of any sentence and the manner in which the

sentence is to be served.” Id.; see State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).

Here, the trial court gave both the State and the defendant an opportunity to be heard on

the issue of sentencing. Instead of presenting argument, the defendant testified. At no

time did he object to the sentencing hearing being held immediately following his trial,

request that the hearing be postponed, or state that he needed more time to adequately

prepare. Thus, the defendant will not now be heard to complain.



              The defendant also contends he is entitled to a new sentencing hearing

because the trial court failed to adhere to the procedures in the Criminal Sentencing

Reform Act. Specifically, the defendant complains that “there is no evidence in the record

that the trial court considered any statutory mitigating or enhancing factors” and that “the

trial court failed to make any findings of fact beyond his prior criminal history” to the

degree meaningful appellate review is precluded. We disagree.



              First we note that even if a record fails to affirmatively show that the trial



                                             9
court failed to consider the proper sentencing principles or exactly follow the statutory

sentencing procedures, meaningful appellate review is not necessarily precluded.

Rather, where the record fails to contain an affirmative showing “that the trial court

considered the sentencing principles and all relevant facts and circumstances,” the trial

court’s sentencing decision is not entitled to a presumption of correctness. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see T.C.A. § 40-35-401(d). Contrary to the

defendant’s assertion, the defendant is not automatically entitled to a new sentencing

hearing.



                 Here, the record reflects that the State requested consecutive, maximum

sentences because of the defendant’s criminal history and lack of rehabilitation.3 The

defendant did not argue the application of any mitigating factors or submit any mitigating

factors for the trial court’s consideration. The defendant was the sole witness during the

sentencing hearing, and if anything, his testimony aided the State’s cause by establishing

that he was currently incarcerated for drug possession. Based on the only evidence

before it---which was evidence of the defendant’s many previous convictions and,

inferentially, his lack of potential for rehabilitation---the trial court imposed mid-range

sentences on the defendant. See T.C.A. §§ 55-10-403(a)(1), 55-50-504(2).



                 On appeal, the defendant admits the trial court specifically found that he

had a previous history of criminal convictions, which is a statutory enhancing factor, see

T.C.A. § 40-35-114(1), and thus contradicts his simultaneous assertion that the trial court

failed to consider any statutory enhancing factors. As for the defendant’s claim that the

trial court failed to consider any statutory mitigating factors, none were argued or



        3
           According to the transcript, the prosecuting attorney mentioned during his argument that he
filed a list of enhancing factors with the trial court. The record on review, however, fails to contain any
such filing.

                                                     10
presented to him for consideration, and from our review of the record, none are

applicable to the defendant. In short, our review of the record indicates that the trial court

considered the sentencing principles and all relevant facts and circumstances. Quite

simply, the record here reflects that the defendant’s previous history of criminal

convictions, which includes at least two DUIs, and six DORLs, and one drug possession

charge, justifies the sentence imposed.         This is true, even in the absence of a

presumption of correctness. The defendant’s challenge to his sentence must fail.



                Finding no merit in the defendant’s arguments, his convictions and sentence

are affirmed.



                                                   _______________________________
                                                   JOHN H. PEAY, Judge


CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




                                             11
