         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 9, 2005

             STATE OF TENNESSEE v. DOUGLAS E. COPELAND

                     Appeal from the Criminal Court for Putnam County
                             No. 03-0699   Leon Burns, Judge



                     No. M2004-01796-CCA-R3-CD - Filed May 11, 2005


The defendant, Douglas E. Copeland, was convicted by a Putnam County Criminal Court jury of
driving under the influence of an intoxicant (DUI), a Class A misdemeanor, and driving on a
suspended license, a Class B misdemeanor. The trial court imposed a sentence of eleven months,
twenty-nine days for the DUI conviction, with probation after ten days in jail, to be served
concurrently with his sentence of six months on probation for the driving with a suspended license
conviction. The trial court also ordered that the defendant pay fines totaling $860.00. On appeal,
the defendant contends that the evidence was insufficient to support his DUI conviction and that the
trial court erred by failing to instruct the jury that his inoperable vehicle was a defense to the DUI
offense. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

David Neal Brady, District Public Defender, and H. Marshall Judd, Assistant Public Defender, for
the appellant, Douglas E. Copeland.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
William Edward Gibson, District Attorney General; and David Alan Patterson and Marty S. Savage,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s arrest for driving under the influence of an intoxicant
after he hit a couple of trees with his vehicle. Monterey Police Lieutenant Richard Lynch testified
that he was dispatched to the scene of the defendant’s accident on August 3, 2003, at approximately
8:45 p.m. He said that when he arrived, the defendant was sitting in the driver’s seat with the engine
running and attempting to move his car away from the tree. He said that he asked the defendant for
his driver’s license and that the defendant did not have one. He said a computer check revealed that
his driver’s license had been suspended in Virginia, Tennessee, and Georgia. He said he asked the
defendant to leave his car and perform some field sobriety tests because the defendant appeared
highly intoxicated. He said the defendant smelled strongly of alcohol, was unsteady on his feet,
appeared confused, and had red, watery eyes. He said the defendant admitted drinking three beers
at home. He said the defendant failed four tests: he was unable to recite the alphabet, count
backward from thirty-six to twenty-four, perform a test involving counting with his fingers, or stand
upright with his eyes closed and head back for an estimated thirty seconds. He said that when he
asked the defendant where the accident occurred, the defendant replied, “Right here. I don’t know
what the hell I hit.” The defendant denied being the driver and said, “If I admit I’m driving, then
you’d get me for a DUI.” This part of the conversation between Lieutenant Lynch and the defendant
was tape recorded and played for the jury.

        On cross-examination, Lieutenant Lynch testified that no one other than the defendant was
present when he arrived at the scene of the accident and that he discovered no physical evidence of
another person in the car. He said the car was registered to the defendant. He said the car left the
roadway, hit a tree with a glancing blow on the right side and stopped when it hit a second tree. He
said that the car appeared to be severely damaged but that he could not tell if it was inoperable or
able to be moved. He said the defendant was attempting to move when he arrived. He said the
defendant told him that a “whore” was driving the car when they hit the trees but that she ran off
afterward. He said the defendant initially refused to give him the woman’s name but later told him
it was “Maria.” He said the defendant did not know where she was or where she lived or any other
information about her. He said that the defendant agreed to take a breathalyzer test but that the
defendant’s lack of cooperation defeated the completion of the test.

        The defendant testified that before the accident, he was at a bar with a woman he had just met
named “Mary.” He said that they left the bar and that she drove his car because she said he was too
drunk. He said he had consumed “[p]robably a six-pack.” He admitted he caused the accident by
“playing with something [he] shouldn’t have.” He said that after she hit the tree, he could not open
the passenger door. He said she left the car and then he got out to inspect the vehicle. He said that
he had worked as a machinist for thirty-five years and that he knew the car was inoperable. He said
he walked to the nearest house and asked the residents to call the police. He said that when he
returned to the car, the woman was gone. He said he sat in the driver’s seat of the car while waiting
for the police to arrive. He said the car’s frame was bent and one tire was “busted” and rammed into
the back of the fire wall. He said that the car was later towed from the police impound yard to his
home and that he determined later it was not worth fixing.

         On cross-examination, the defendant testified he did not try to find the woman who drove
his car because she would never have admitted to being involved. He admitted that he was drunk
at the time of the accident and that he may have said to Lieutenant Lynch, “I don’t know what the
hell I hit.” He acknowledged that the car contained no evidence to show that a woman was present
and explained that she took her purse and personal belongings with her. He said that they had just
met and had been in the car only five minutes before the accident occurred.



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        Recalled as a rebuttal witness, Lieutenant Lynch testified he found nothing to indicate that
the defendant left the scene to call the police. He said that he asked the defendant to describe the
woman he claimed was driving the car but that the defendant was unable to do so.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the facts are insufficient as a matter of law to sustain his DUI
conviction. His brief, though, is devoid of argument or reasons to support his contention. In any
event, our review reflects that the evidence justifies finding the defendant guilty beyond a reasonable
doubt.

                                    II. JURY INSTRUCTION

        The defendant contends that the trial court erred by failing to instruct the jury that an
inoperable vehicle would be a defense to the charge that he was in physical control of an automobile
while intoxicated. The state contends that the trial court properly instructed the jury.

       Tennessee Code Annotated section 55-10-410 states in pertinent part:

               (a) It is unlawful for any person to drive or to be in physical control
               of any automobile or other motor driven vehicle on any of the public
               roads and highways of the state, or on any streets or alleys, or while
               on the premises of any shopping center, trailer park or any apartment
               house complex, or any other premises which is generally frequented
               by the public at large, while:

               (1) Under the influence of any intoxicant, marijuana, narcotic drug,
               or drug producing stimulating effects on the central nervous system

      The trial court gave the jury the following instruction concerning “physical control” of an
automobile:
                      For a person to be in physical control of a motor vehicle, a
              person must be present at or near the motor vehicle, and must have
              the ability to determine whether or not such motor vehicle is moved,
              and if so, to where it is moved. It is not necessary that the motor of
              a motor vehicle be running or capable of starting for a person to be in
              physical control of such vehicle. A person may be in physical control
              of a motor vehicle without driving, starting, or moving the motor
              vehicle.

        The defendant has a constitutional right to complete and accurate instructions of the law.
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). He also has a right to have every issue of fact
raised by the evidence and material to his defense submitted to the jury under proper instructions.


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See State v. Brown, 836 S.W.2d 530, 553 (Tenn. 1992); State v. Phipps, 883 S.W.2d 138, 149-50
(Tenn. Crim. App. 1994). The trial court has a duty to give a complete charge of the law of the
offense included in the indictment, without any request on the part of the defendant to do so. T.C.A.
§ 40-18-110(a); Teel, 793 S.W.2d at 249. The failure to do so deprives the defendant of the right
to a jury trial. Id. The Fifth and Sixth Amendments to the United States Constitution “require
criminal convictions to rest upon a jury determination that the defendant is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515
U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.
Ct. 2078, 2080-81 (1993).

         “The proper function of a special instruction is to supply an omission or correct a mistake
made in the general charge, to present a material question not treated in the general charge, or to
limit, extend, eliminate, or more accurately define a proposition already submitted to the jury.” State
v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001). “A trial court should give a requested instruction if it
is supported by the evidence, embodies a party’s theory, and is a correct statement of the law.” State
v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App. 1994). Denial of a special request is error
only if the trial court’s charge does not fully and fairly state the applicable law. Cozart, 54 S.W.3d
at 245; State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). However, Rule 30, Tenn.
R. Crim. P., provides that special requests for jury instructions be filed in writing. A trial court will
not be placed in error when a requested special instruction was not presented in writing. State v.
Mackay, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982).

        The record reflects that at the conclusion of proof at the trial, the defendant’s attorney
requested a special jury instruction on the inoperability of the defendant’s car as it related to the issue
of whether he had “physical control” of the car at the time he was arrested. The trial court denied
his request. At the hearing on the defendant’s motion for new trial, the defendant’s attorney argued
that the trial court erred by refusing to give a jury instruction that a “completely” inoperable
automobile would be a defense to the charge that the defendant had physical control of the car.
Although we believe that a properly worded jury instruction regarding a completely inoperable
vehicle may have been proper in this case, no clear instruction was presented by the defendant. A
written request was never submitted to the trial court at the conclusion of trial, nor has the defendant
set forth a proposed jury instruction in his brief to this court. It is also unclear from our review of
the record of the trial and the hearing on the motion for new trial what the proposed instruction
would have been. Because a trial court will not be placed in error when a requested special
instruction was not presented in writing, and no inaccuracy exists in the charge given by the trial
court, the defendant is not entitled to relief on this issue.

        Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE


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