         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 19, 2002

                  STATE OF TENNESSEE v. JAMES C. MCFALL

                     Appeal from the Criminal Court for Hawkins County
                            No. 7865    James E. Beckner, Judge



                                  No. E2001-02712-CCA-R3-CD
                                          July 9, 2002

The Defendant, James McFall, was found guilty by a jury of violating a motor vehicle habitual
offender order. The trial court subsequently sentenced the Defendant as a multiple, Range II
offender to three years in the Department of Correction, to be served consecutively to a prior
sentence. The Defendant now appeals, challenging the sufficiency of the indictment; the sufficiency
of the evidence; the trial court’s instructions to the jury; and the efficacy of the State’s Notice of
Intent to Seek Enhanced Punishment. We affirm the judgment of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and NORMA
MCGEE OGLE, J., joined.

Greg Eichelman, Morristown, Tennessee, for the appellant, James C. McFall.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
C. Berkeley Bell, District Attorney General, and Douglas Godbee, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The Defendant lives in a mobile home park off of Little Springs Road, a county road. The
drive leading through the park is on private property. The State and the Defendant stipulated that
the Defendant’s status as a motor vehicle habitual offender was in effect on March 28, 2001.

        Jeff and Patricia Richards lived in the first mobile home in the park; Patricia’s brother
Andrew Jackson Wallace was visiting them on the day in question. Each of these witnesses testified
that, on March 28, 2001, they saw the Defendant drive down the park lane to the intersection with
Little Springs Road, continue onto Little Springs Road, drive around a curve, and then drive back
into the park a short time later. Immediately thereafter, these witnesses saw the police enter the park.
        Sgt. Martin Taylor testified that he drove into the park and found the Defendant sitting in the
driver’s seat of a car in the driveway of the Defendant’s residence, attempting to back up. Sgt.
Martin approached the Defendant and told him to stop the engine. Sgt. Martin then asked for the
Defendant’s driver’s license, but the Defendant did not produce one. Sgt. Martin testified that the
Defendant was so intoxicated that he “couldn’t even stand up by himself.”

        The Defendant testified, adamantly denying having driven on the day in question. He stated
that he was sitting in his living room watching television when the police arrived. He also denied
having been drunk, but did admit that he had been drinking beer in his home.

                               SUFFICIENCY OF INDICTMENT
        We first address the Defendant’s contention that the indictment in this case is fatally flawed.
In pertinent part, the indictment states that the Defendant,
               on or about March 28, 2001, in [Hawkins County, Tennessee] . . . did
               unlawfully commit the offense of violation of the habitual motor
               vehicle offender act by operating a motor vehicle in the State of
               Tennessee while an order of the Criminal Court of the Sixth Judicial
               District of the State of Tennessee prohibiting the defendant from
               operating a motor vehicle remains in effect; a Class E felony in
               violation of T.C.A. 55-10-616 . . . .

The Defendant contends that the indictment does not charge an essential element of the offense: that
he was driving on public roads.

       We respectfully disagree with the Defendant’s contention. The statute which creates the
crime of driving while a motor vehicle habitual offender order is in effect states, in pertinent part,
“[a]ny person found to be an habitual offender under the provisions of this part who thereafter is
convicted of operating a motor vehicle in this state while the judgment or order of the court
prohibiting such operation is in effect commits a Class E felony.” Tenn. Code Ann. § 55-10-616(b).
The statute makes no reference to the status of the property upon which the accused is found
operating a motor vehicle, other than that it be within the borders of Tennessee.

        In State v. Hammonds, our supreme court recently reiterated that, “[u]nder both the United
States and the Tennessee Constitutions, a charging instrument, such as an indictment, must inform
the accused of ‘the nature and cause of the accusation.’” 30 S.W.3d 294, 297 (Tenn. 2000). Our
criminal code further directs that an indictment
                state the facts constituting the offense in ordinary and concise
                language, without prolixity or repetition, in such a manner as to
                enable a person of common understanding to know what is intended,
                and with that degree of certainty which will enable the court, on
                conviction, to pronounce the proper judgment . . . .



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Tenn. Code Ann. § 40-13-202. An indictment is constitutionally adequate if it contains allegations
that (1) enable the accused to know the accusation to which answer is required; (2) furnish the trial
court an adequate basis for entry of a proper judgment; and (2) protect the accused from a subsequent
prosecution for the same offense. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). An
indictment which references the statute defining the offense and uses its language is generally
sufficient. See Hammonds, 30 S.W.3d at 300; Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998).
Where an indictment is sufficient, a defendant should move for a bill of particulars if he or she
desires additional information about the nature of the alleged conduct. See Hammonds, 30 S.W.3d
at 303.

        Applying these principles to the case before us, it is clear that the indictment against the
Defendant is sufficient. It contains allegations notifying the Defendant of the date on which the
alleged conduct occurred, the county in which it allegedly occurred, and the nature of the offense:
that the Defendant operated a motor vehicle while a court order prohibiting such operation was in
effect. The precise location and ownership status of the property where the Defendant allegedly
operated the motor vehicle was not information necessary for the Defendant to understand the
accusation made against him. Nor was it necessary for the trial court to enter a proper judgment, or
to protect the Defendant from a subsequent prosecution for the same offense. Accordingly, the
indictment satisfied constitutional and statutory requirements, and this issue is therefore without
merit.

                                 SUFFICIENCY OF EVIDENCE
         We next address the Defendant’s contention that the evidence is not sufficient to support his
conviction. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient
if, after reviewing 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. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition,
because conviction by a trier of fact destroys the presumption of innocence and imposes a
presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs,
995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. 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, not the appellate courts.

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See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

         As noted above, the offense of which the Defendant was convicted is committed when a
motor vehicle habitual offender operates a motor vehicle in Tennessee while a court order
prohibiting such operation is in effect. The Defendant stipulated that his status as a motor vehicle
habitual offender was in effect on the date in question. Three eyewitnesses testified that they saw
the Defendant drive a car down the park lane and onto a public street, returning a short time later.
A police officer testified that he found the Defendant behind the wheel of a car, attempting to back
it out of his driveway. The Defendant claimed that he had not driven any car that day. Clearly, the
jury accredited the testimony of the State’s witnesses and determined that the Defendant had driven
in violation of the court’s order. The evidence upon which the jury based its verdict is more than
sufficient to support the Defendant’s conviction, and this issue is therefore without merit.

                                      JURY INSTRUCTIONS
        The Defendant complains about the trial court’s instructions to the jury concerning the
elements of the crime of which he was convicted. The Defendant requested the trial court to charge
the jury with the text of the statute that deals with the designation of a driver as a motor vehicle
habitual offender, to wit:
               If the court finds that the defendant is not an habitual offender, the
               proceeding shall be dismissed, but if the court finds that such
               defendant is an habitual offender, the court shall make an order
                directing that such person shall not operate a motor vehicle on the
               highways of this state and that such person shall surrender to the
               court all licenses to operate a motor vehicle upon the highways of this
               state.

Tenn. Code Ann. §55-10-613(a) (emphasis added). The Defendant’s motive in requesting this
instruction was to ensure that the jury considered only the proof regarding his driving on Little
Springs Road, and not the proof about his driving while in the mobile home park.

      The trial court not only denied the Defendant’s request, but instructed the jury about the
elements of the crime as follows:
                      Any person who drives a vehicle in violation of the motor
               vehicle habitual offender act is guilty of a crime. For you to find the
               defendant guilty of this offense, the state must have proven beyond
               a reasonable doubt the existence of the following essential elements:
               one, that the defendant has previously been found by a Tennessee
               Court to be an habitual motor vehicle offender under the provisions
               of the motor vehicle offender [sic] habitual offender act; and, two,
               that while the Court order continued in effect, the defendant operated
               a motor vehicle on the public roads or highways or the premises of a


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                trailer park or any premises which are generally frequented by the
                public at large of this state.

(emphasis added). In so instructing the jury, the trial court borrowed language from the DUI statute.
See Tenn. Code Ann. §55-10-401(a). The Defendant contends that the trial court’s instruction is
reversible error.

        We first note that a trial court must “give a complete charge of the law applicable to the facts
of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). A jury charge contains prejudicial
error “if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”
State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). However, jury instructions must be reviewed
in the context of the overall charge rather than in isolation. See id. “Erroneous jury instructions
require a reversal unless the error is harmless beyond a reasonable doubt.” State v. Clifford
Coleman, No. M2000-01916-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 84, at *19 (Nashville,
Jan. 31, 2002) (citing Welch v. State, 836 S.W.2d 586 (Tenn. Crim. App. 1992).

       We agree with the Defendant that the trial court erred in instructing the jury that the offense
could be committed by driving on the premises of a trailer park or other premises frequented by the
public. Nothing in the motor vehicle habitual offender act makes reference to this language.
Moreover, the Tennessee Pattern Jury Instruction for violation of the Motor Vehicle Habitual
Offender Act is as follows:
                       Any person who drives a vehicle in violation of the Motor
              Vehicle Habitual Offender Act is guilty of a crime.

                       For you to find the defendant guilty of this offense, the state
                must have proven beyond a reasonable doubt the existence of the
                following essential elements:

                        (1)     that the defendant has previously been found by a
                                Tennessee court to be an habitual offender under the
                                provisions of the Motor Vehicle Habitual Offender
                                Act;

                                                   and

                        (2)     that while the court order continued in effect, the
                                defendant operated a motor vehicle on the public
                                roads or highways of this state.

                        An order declaring a person to be an habitual motor vehicle
                offender remains in effect until such time as that person successfully
                petitions a court of competent jurisdiction to restore his or her driving
                privileges.

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T.P.I.--Crim. 38.11 (footnotes omitted). We note further, however, that the term “highway” is
defined as “the entire width between the boundary lines of every way when any part thereto is open
to the use of the public for purposes of vehicular travel.” Tenn. Code Ann. §55-8-101(22) (emphasis
added). Patricia Richards and Andrew Wallace both testified about the lane through the park being
traveled on by a dump truck. Ms. Richard’s sister-in-law also drove into the park on the lane to ask
her brother a question, and then left. The clear inference from this evidence is that, although the
mobile home park was stipulated to be private property, the lane serving the mobile homes also
operated as a “highway,” according to the statutory definition of a “highway.”

        We note the inconsistency between the statute that creates the status of motor vehicle habitual
offender, and the statute that creates the crime of driving while a motor vehicle habitual offender.
The former statute refers to operating a motor vehicle on “the highways of this state.” Id. §55-10-
613(a). The latter statute refers to “operating a motor vehicle in this state.” Id. §55-10-616(b).
However, as recognized by the State in its brief, one of the stated purposes of the Motor Vehicle
Habitual Offender Act is to “[d]eny the privilege of operating motor vehicles on [the public
highways of the state] to persons who by their conduct and record have demonstrated their
indifference to the safety and welfare of others and their disrespect for the laws of the state.” Id. §
55-10-602(2). Accordingly, we think that a proper jury charge should reference the term “highway”
and include the definition of that term; the charge should not, however, include the language from
the DUI statute.

        Nevertheless, we think the trial court’s error in this regard is harmless beyond a reasonable
doubt. All of the testimony concerning the Defendant actually driving a car, as opposed to
attempting to back it out of his driveway, placed the Defendant on Little Springs Road, a public
roadway. Although the jury was charged with attempted violation of the habitual motor vehicle act,
the jury rejected this offense and convicted the Defendant of actually driving while a motor vehicle
habitual offender order was in effect. Clearly, the jury accredited the testimony of the three
witnesses who testified that they saw the Defendant drive out of the mobile home park onto Little
Springs Road, and then return a short time later. Accordingly, we find that the trial court’s error was
harmless beyond a reasonable doubt, and this issue is therefore without merit.

                             EFFICACY OF STATE’S PLEADING
        Finally, the Defendant contends that the State’s Notice of Intent to Seek Enhanced
Punishment should have been set aside because it misstated the classes of the referenced felonies.
The Defendant concedes, however, that defense counsel “was able to discern the felonies” being
relied upon by the State to seek enhanced punishment. Accordingly, the Defendant suffered no
prejudice from the error in the Notice, and this issue is therefore without merit. See State v. Debro,
787 S.W.2d 932, 934 (Tenn. Crim. App. 1989) (holding that the defendant must show prejudice
arising from a defect in a notice of intent to seek enhanced punishment for a grant of relief).

       The judgment of the trial court is affirmed.



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      ___________________________________
      DAVID H. WELLES, JUDGE




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