                  IN THE COURT OF CRIMINAL APPEALS

                           AT KNOXVILLE            FILED
                         APRIL 1997 SESSION
                                                      July 29, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )   C.C.A. No. 03C01-9604-CC-00171
           Appellee,              )
                                  )   SULLIVAN COUNTY
vs.                               )
                                  )   HON. R. JERRY BECK, JUDGE
RICKY DEAN COLE,                  )
                                  )   (DUI, Possession of Marijuana and
           Appellant.             )   Drug Paraphernalia)



FOR THE APPELLANT:                    FOR THE APPELLEE:

STEPHEN WALLACE (trial and appeal)    JOHN KNOX WALKUP
District Public Defender              Attorney General and Reporter
P. O. Box 839
Blountville, TN 37517                 SARAH M. BRANCH
                                      Assistant Attorney General
RANDALL E. REAGAN (appeal only)       450 James Robertson Parkway
602 Gay Street, Suite 905             Nashville, TN 37243-0493
Knoxville, TN 37209

                                      H. GREELEY WELLS, JR.
                                      District Attorney General

                                      PHYLLIS H. MILLER
                                      Assistant District Attorney General
                                      P. O. Box 526
                                      Blountville, TN 37617-0526




OPINION FILED:



AFFIRMED


JOE G. RILEY,
JUDGE




                             OPINION
       Defendant, Ricky Dean Cole, was convicted by jury verdict of the offenses of

driving under the influence of an intoxicant, fourth offense; simple possession of

marijuana; and possession of drug paraphernalia. He was sentenced to eleven (11)

months and twenty-nine (29) days for each of the three offenses with two of the

sentences running concurrently and the other consecutively. Defendant raises the

following issues in his appeal:

              (1) whether the evidence was sufficient to sustain the convictions;

              (2) whether prejudicial error resulted when a toxicology request
                  form containing a reference to prior convictions was passed
                  to the jury; and

              (3) whether the trial court erred in imposing consecutive sentences.

We AFFIRM the judgment of the trial court.



                                         FACTS

                                    A. State’s Proof

       Defendant resided in a room at the Model City Motel in Kingsport. On the

evening of December 31, 1993, he had a New Year’s Eve party and became heavily

intoxicated. At approximately 10:00 p.m. the defendant was observed entering and

driving an automobile which hit another automobile in the parking lot. Realizing that

he had struck the car of fellow occupants in the motel, he went to their room and

advised them that he had hit their vehicle. The police were summoned, much to the

chagrin of the defendant.

       Defendant also advised other persons, including a police officer, that he was

responsible for the accident. Since defendant’s girlfriend had already driven the car

away by the time the police arrived, the officer questioned the defendant about his

girlfriend. The defendant stated he did not know his girlfriend’s name.

       By all accounts, defendant was, in the words of the late Chief Justice Joe



Henry, “drunk - openly, visibly, notoriously, gloriously and uproariously drunk.”1 He


       1
        Metro. Government of Nashville & Davidson County v. Martin, 584 S.W.2d 643, 646
(Tenn.1979). Defendant had purchased five (5) half gallons of vodka “to start with” and when

                                             2
failed all field sobriety tests, and his blood alcohol level was tested to be .18%. Since

the inebriated defendant was barefooted and shirtless on this “icy cold” New Year’s

Eve night, the arresting officer allowed him to put on some clothes prior to being taken

to the police station. A subsequent search of the defendant yielded a bag of marijuana

and a small set of scales in the defendant’s coat pocket. The defendant had been

seen wearing this jacket on prior occasions.

                                      B. Defense Proof

       Defendant testified in his defense. He admitted to being “heavily intoxicated.”

As was the custom when he got drunk, he and his girlfriend got into a fight since “she

don’t like me [drunk].” The defendant described his girlfriend as “six one” weighing

“three, twenty-five,” which was “a bunch” more than defendant weighed.2 This was no

ordinary fight but a “bad one, knock down, drag out” in which “[s]he liked to beat me

to death, blackened both of my eyes.” According to the defendant, “[my girlfriend] run

to her car and jumped in” the 1973 Omni locking the doors. Overmatched yet

undaunted, the fearless, fiery, forceful defendant gave chase to his fleeing girlfriend,

much to the amazement and amusement of his fellow party-goers in attendance at this

“major wild party.”3 It was at this point, according to the defendant’s testimony, that his

girlfriend endeavored to drive away in great haste and backed into the other

automobile. Defendant denied driving the automobile.

       The defendant further denied telling anyone that he had driven the automobile.

He admitted telling the officer that he did not know his girlfriend’s name. However, he

testified that she had three (3) names, and he did not know which was her true name.

While they were dating, she used a different name than when they were living

together.4 As to the coat, the defendant explained that the party-goers had piled their

coats in the room, and he simply grabbed one of them. This was not his coat, and he



asked whether he drank “a bunch of that yourself,” defendant replied, “I tried.”
       2
         According to the pre-sentence report, defendant weighed 160 pounds, less than
one-half his girlfriend’s weight.
       3
          None of the party-goers testified. In explaining their failure to testify, defendant
testified that “everybody that he knowed” was either out-of-state or in jail.
       4
           At the time they were dating, defendant did not know she was married.

                                                3
was unaware that the coat contained the marijuana and scales.

       The only other defense witness was defendant’s mother who testified in

surrebuttal. She testified that the jacket worn by defendant upon release from the jail

did not fit him and was not the same jacket she had purchased for him earlier.

                                    C. Jury Verdict

       The jury convicted the defendant of driving under the influence of an intoxicant,

simple possession of marijuana and possession of drug paraphernalia. The trial then

went into the second phase in which the state introduced proof of three prior DUI

convictions. The jury then found defendant guilty of DUI, fourth offense.

                           D. Sufficiency of the Evidence

       In determining the sufficiency of the evidence, this Court does not reweigh or

re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A

jury verdict approved by the trial judge 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 legitimate or reasonable inferences

which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to

the sufficiency of the evidence unless the defendant demonstrates that the facts

contained in the record and the inferences which may be drawn therefrom are

insufficient, as a matter of law, for a rational trier of fact to find the accused guilty

beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.

1996). Accordingly, it is the appellate court’s duty to affirm the conviction if the

evidence, viewed under these standards, was sufficient for any rational trier of fact to

have found the essential elements of the offense beyond a reasonable doubt. Tenn.

R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 61

L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       This case clearly turned on the credibility of the witnesses. The jury accredited

the state’s proof and rejected the version given by the defendant. The evidence clearly

supported the jury’s guilty verdict of driving under the influence of an intoxicant, simple

possession of marijuana and possession of drug paraphernalia. This issue is without



                                            4
merit.



                                TOXICOLOGY REQUEST



         During the testimony of the police officer, the “alcohol/toxicology request” form

was marked for identification. The officer read to the jury from this form. Under type

of offense, the officer simply stated “DUI.” In fact, the form read “DUI 6th.”

         During the testimony of the forensic scientist who had tested defendant’s blood

sample, the state requested that the laboratory report be passed to the jury. Instead,

the “alcohol/toxicology request” was inadvertently passed to the jury. This inadvertent

error was not discovered until the request form had been passed to some of the jurors.

         Counsel then suggested to the court that this exhibit had been marked for

identification only and should not be passed to the jury. The trial judge was of the

opinion it was a “full exhibit.” The judge further determined it was too late to do

anything since the document had already been passed to the jury. At no time did

counsel point out to the court or jury that the document contained the words “DUI 6th.”

Furthermore, there was no mention made by counsel, the court, nor any witness during

the guilty phase of the trial as to any prior convictions.

         We first note that this issue was not raised in the motion for new trial. Only the

sufficiency of the evidence was raised in the motion. Accordingly, this issue is waived.

Tenn. R. App. P. 3(e); State v. Seaton, 914 S.W.2d 129 (Tenn. Crim. App. 1995).

         We further conclude, in light of the facts and circumstances, that this

inadvertent error was harmless. Tenn. R. App. P. 36(b). The officer’s reading from the

form simply stated that the type offense was “DUI.” There was no mention made

during the guilt phase of trial of any prior convictions. In light of the evidence against

the defendant, defendant did not suffer any prejudice. This issue is without merit.



                             CONSECUTIVE SENTENCING



         Defendant was sentenced to eleven (11) months and twenty-nine (29) days on


                                             5
each of the three offenses with two (2) of the sentences running concurrently and one

(1) running consecutively. Defendant contends there is no basis for consecutive

sentencing.

       Defendant had numerous convictions not only prior to commission of the

present offense, but also several convictions thereafter. He had alcohol and drug

related offenses and had numerous traffic offenses, including driving on a revoked

license. He was on probation at the time this offense was committed. Pursuant to

Tenn. Code Ann. § 40-35-115(b)(2), (4) and (6) the trial court in imposing consecutive

sentences found the following:

              (1) the defendant had an extensive record of criminal
              activity;

              (2) the defendant was a dangerous offender; and

              (3) the defendant committed the present offense while
              on probation.

       This Court’s review of the sentences imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). The evidence clearly

supports the trial judge’s rationale for consecutive sentencing. Furthermore, the terms

imposed by the trial judge are reasonably related to the severity of the offenses and

are necessary to protect the public from further criminal acts by the offender. State v.

Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Although the trial court did not make

the findings required by Wilkerson, we find that these factors are present under our

power of de novo review. State v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1993);

State v. Edward Thompson, C.C.A. No. 03C01-9503-CR-00060, Cocke County (Tenn.

Crim. App. filed December 12, 1996, at Knoxville).         Consecutive sentencing is

appropriate. This issue is without merit.

      For the above reasons the judgment of the trial court is AFFIRMED.




                                                 JOE G. RILEY, JUDGE

CONCUR:




                                            6
JERRY L. SMITH, JUDGE




CHRIS CRAFT, SPECIAL JUDGE




                             7
