                   IN THE COURT OF CRIMINAL APPEALS

                                 AT KNOXVILLE             FILED
                               APRIL 1997 SESSION            July 9, 1997

                                                         Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )                   Appellate C ourt Clerk
                                      )    C.C.A. NO. 03C01-9606-CC-00229
      Appellee,                       )
                                      )    GREENE COUNTY
VS.                                   )
                                      )    HON. JAMES E. BECKNER,
                                      )    JUDGE
JOSEPH L. FLETCHER,                   )
                                      )    (Driving Under the Influence-2nd
      Appellant.                      )    Offense)


FOR THE APPELLANT:                         FOR THE APPELLEE:

WILLIAM H. BELL                            JOHN KNOX WALKUP
P.O. Box 1876                              Attorney General & Reporter
Greeneville, Tennessee 37743
                                           TIMOTHY F. BEHAN
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, Tennessee 37243-0493

                                           C. BERKELEY BELL, JR.
                                           District Attorney General

                                           ERIC D. CHRISTIANSEN
                                           Assistant District Attorney General
                                           113-J West Church St.
                                           Greeneville, TN 37743




OPINION FILED: _________________



AFFIRMED


JOE G. RILEY,
JUDGE
                                       OPINION

       Defendant, Joseph L. Fletcher, appeals as of right a jury conviction for driving

under the influence (DUI), second offense. He was sentenced to eleven months and

twenty-nine days and fined $610. Fletcher presents four issues for our review:

1) whether the evidence was sufficient to sustain the conviction; 2) whether the state

is required to prove a culpable mental state for a DUI conviction; 3) whether the trial

court abused its discretion in allowing testimony about certain drugs; and 4) whether

the sentence is excessive. We affirm the judgment of the trial court.



                                        FACTS

       The facts of this case involve a two-vehicle collision where defendant rear-

ended two individuals, Mr. and Ms. Musick, occupying another car. On August 19,

1994, the Musicks were traveling on U.S. Highway 11-E Bypass. Mr. Musick, the

driver, came to a red light and stopped. Mr. and Ms. Musick then heard a

“squealling” sound of tires behind them which was followed by the impact of

defendant’s van with the rear of their vehicle. Defendant and Mr. Musick got out of

their vehicles to assess the damage. Musick observed defendant “barefooted and

sort of limping” and “mumbling around, like he was real nervous.” They returned to

their respective vehicles where Musick noticed defendant doing something with a red

bag. When police arrived Musick informed the officer that he thought defendant had

been drinking.

       Officer Todd Shelton of the Greeneville Police Department responded to the

accident. He observed defendant as “unsteady on his feet” and needing to “lean on

the side of the van to hold himself up.” Officer Shelton asked defendant if he had

been drinking or was on any drugs. Defendant indicated that he had not had

anything to drink; however, the response to the taking of drugs was muffled and

unclear. Officer Shelton did not perform certain field sobriety tests due to

defendant’s leg and back disability. Nevertheless, Officer Shelton concluded

defendant was “definitely impaired” and placed him under arrest.


                                           2
         Officer Shelton later found in defendant’s vehicle a red gym bag containing

several prescription medication bottles. He listed the medication as dilantin,

amitriptylin, lorazepam, methocarbamol, and monopril. Shelton then had

defendant’s vehicle towed, explained the implied consent form to which defendant

agreed, and took defendant to the hospital where his blood was drawn. After

receiving the blood sample, Shelton requested an alcohol and drug screen from the

Tennessee Bureau of Investigation (TBI).

         Janice Gangwer, a TBI toxicologist, analyzed the blood sample. Her analysis

revealed that defendant’s blood contained diazepam, nordiazepam, butalbital,

phenobarbital, and phenytoin. She classified the drugs as central nervous system

depressants capable of impairing one’s driving ability.

         Defendant testified on his own behalf. He testified regarding injuries from a

car, motorcycle, and gun accident which ultimately resulted in his current epileptic

condition. He admitted to taking medication that evening, but stated that the bag

contained his wife and son’s medications as well. He had taken the medication, laid

down for a couple of hours, and then commenced to drive. He stated that he went

down below the bypass and the next thing he remembered was being in the police

car.

         Mike Fincher, a correctional officer for the local detention center, also testified

for the defense. As the intake officer that filled out defendant’s paperwork, Fincher

described an intake card to which defendant had responded. It indicated that

defendant experienced epileptic seizures, breathing problems, back pain and had a

leg gunshot wound. Fincher further observed that defendant was “unsteady on his

feet.”

         Earl Fletcher, defendant’s father, provided additional testimony for the

defense. He had witnessed some of defendant’s previous seizures.



                              SUFFICIENCY OF THE EVIDENCE




                                              3
       Defendant contends the evidence was insufficient to prove guilt beyond a

reasonable doubt. 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 (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. Grace, 493

S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate court is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

The weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn.

1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

       The testimony at trial consisted of several witnesses that observed

defendant’s behavior on the night in question. Each witness relayed the same story

that defendant was unsteady on his feet and appeared unable to drive. The alcohol

and drug screen revealed five different central nervous system depressants or drugs

in defendant’s system. Although the defense strategy at trial emphasized

defendant’s epileptic state as the cause of the accident, this did not negate his

admitted testimony of taking drugs whose cumulative effect severely hampered his

driving. The nature of the accident itself, the several eyewitness observations, and

the drug screen provide more than sufficient proof to convince a reasonable juror

beyond a reasonable doubt that defendant was driving under the influence of an


                                             4
intoxicant. This issue is without merit.




                        REQUIREMENT OF MENTAL STATE FOR DUI



         In order to sustain a DUI conviction, defendant argues the state was required

to prove his mens rea. He contends that taking prescription drugs within the normal

range does not provide the necessary culpable mental state as defined in Tenn.

Code Ann. § 39-11-301 (a),(b). 1 He argues, in effect, that as a lawful user of these

drugs he cannot be guilty of DUI. It is no defense to DUI that the defendant is

entitled to use such drugs. Tenn. Code Ann. §55-10-402. This Court has previously

held that “there is no culpable mental state required for guilt of DUI.” State v. Turner,

1996 WL 555237, *2 No. 03C01-9510-CC-00321 (Tenn. Crim. App. filed October 1,

1996, at Knoxville); see also State v. Fiorito, C.C.A. No. 03C01-9401-CR-00032,

Blount County (Tenn. Crim. App. filed November 27, 1995, at Knoxville). Regardless

of whether defendant intended to drive under the influence of these drugs, he chose

to drive and his ability to drive was clearly impaired. Accordingly, this issue is

without merit.



                               ABUSE OF DISCRETION

         Defendant next argues that the trial court abused its discretion by allowing

Officer Shelton to testify regarding the drugs that were found in defendant’s

possession. Since these drugs were not found in his blood, defendant contends they

were irrelevant and highly prejudicial. Tenn. R. Evid. 403.

         Trial courts have a wide degree of discretion when determining whether to

admit or exclude relevant evidence and will be reversed only for an abuse of that

discretion. See State v. Forbes, 918 S.W.2d 431, 439 (Tenn. Crim. App. 1995).



1
    A person commits an offense who acts intentionally, knowingly, recklessly or with
    criminal negligence.

                                               5
“Relevant evidence” is evidence “having any tendency to make the existence of any

fact more probable or less probable than it would have been without the evidence.”

Tenn. R. Evid. 401.

      Officer Shelton testified that he found several bottles of prescription drugs in

a red bag in defendant’s vehicle. He started to list the drugs beginning with dilantin

and defense counsel objected attempting to limit the testimony to those drugs

specifically found in defendant’s blood. The objection was overruled. The TBI

toxicologist later testified as to the actual amount of medications found in defendant’s

blood. She found .5 micrograms of diazepam, .18 micrograms of nordiazepam, 13

micrograms of butalbital, and noted the presence of phenobarbital and phenytoin.

       Absent a showing that the drugs listed by Officer Shelton were derivatives of

the drugs found by the toxicologist, we agree that it was error to admit such

testimony. However, given defendant’s admission of taking drugs prior to driving and

the other evidence against him, the fact that he had other drugs in his possession

had no harmful influence upon the verdict. Tenn. R. App. P. 36(a); see also State v.

Street, 1996 WL 529993, C.C.A. No. 01C01-9508-CC-00257 (Tenn. Crim. App. filed

September 19, 1996, at Nashville). This issue is without merit.



                            EXCESSIVE SENTENCE



       Defendant finally attacks the propriety of his sentence. This Court’s review of

the sentence imposed by the trial court is de novo with a presumption of correctness.

Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). The burden is upon the appealing party to show that the sentence

is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

       Under the 1989 Act, sentences which involve confinement are to be based on

the following considerations contained in Tenn. Code Ann. §40-35-103(1):


                                           6
              (A) confinement is necessary to protect society
              by restraining a defendant who has a long history
              of criminal conduct;

              (B) confinement is necessary to avoid depreciating
              the seriousness of the offense or confinement is
              particularly suited to provide an effective deterrence
              to others likely to commit similar offenses; or

              (C) measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to
              the defendant . . . .

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

       Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302, which

provides in part that the trial court shall impose a specific sentence consistent with the

purposes and principles of the 1989 Criminal Sentencing Reform Act. See State v.

Palmer, 902 S.W.2d 391 (Tenn. 1995). One convicted of a misdemeanor, unlike one

convicted of a felony, is not entitled to a presumption of a minimum sentence. State v.

Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

       After the guilty verdict of driving under the influence, the defendant stipulated this

was his second offense DUI. A conviction for driving under the influence, second

offense, is a misdemeanor for which defendant could receive 45 days to eleven months

and twenty-nine days and a fine between $600 and $3500. Defendant was fined $610

and received eleven months and twenty-nine days with a 30% minimum program

eligibility. The trial court found that the defendant had a history of prior convictions

consisting of assault, resisting arrest, and driving on a suspended license. Tenn. Code

Ann. §40-35-114(1). Furthermore, the trial court found that this crime was committed

under circumstances for which the potential for bodily injury to the victims was great.

Tenn. Code Ann. §40-35-114(16). The trial court specifically and properly rejected the

mitigating factors suggested by the defendant and recited the various principles of

sentencing.   Defendant has not overcome the presumption of correctness of the

sentence. This issue is without merit.

       The judgment of the trial court is AFFIRMED.




                                             7
                                      _________________________
                                      JOE G. RILEY, JUDGE


CONCUR:




_______________________________
JERRY L. SMITH, JUDGE




_______________________________
CHRIS CRAFT, SPECIAL JUDGE




                                  8
