          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                       AUGUST SESSION, 1996
                                                    FILED
                                                    October 1, 1996
STATE OF TENNESSEE,        )
                                               Cecil Crowson, Jr.
                           )    No. 03C01-9510-CC-00321ourt Clerk
                                               Appellate C
      Appellee             )
                           )    BLOUNT COUNTY
vs.                        )
                           )    Hon. D. Kelly Thomas, Jr., Judge
JOHN RUSSELL TURNER,       )
                           )    (DUI)
      Appellant            )



For the Appellant:              For the Appellee:

Mack Garner                     Charles W. Burson
District Public Defender        Attorney General and Reporter
318 Court Street
Maryville, TN 37801             Michael J. Fahey, II
                                Assistant Attorney General
                                Mary Ann Queen,
                                Legal Assistant
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                Michael L. Flynn
                                District Attorney General

                                Charles Carpenter
                                Asst. District Attorney General
                                Blount County Courthouse
                                Maryville, TN 37801




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, John Russell Turner, appeals from his conviction by a jury

for driving under the influence of an intoxicant. The Circuit Court of Blount

County sentenced the appellant to eleven months and twenty-nine days

incarceration in the county jail and suspended all but five days. On appeal, the

appellant contends that the evidence adduced at trial is insufficient to support a

conviction, because the State failed to prove that he intended to operate a

vehicle.



       After reviewing the record, we affirm the judgment of the trial court.



                                 BACKGROUND

       Shortly after midnight, on December 31, 1994, Officer Ruskey of the

Maryville Police Department observed two individuals stagger across the public

parking lot adjoining the “Coffee Shop,” an establishment which serves alcoholic

beverages, and enter a vehicle. By the time the officer approached the vehicle,

the lights were on and the engine was running. The vehicle, however, remained

stationary. The appellant was seated behind the steering wheel, and a female

occupied the passenger seat. The appellant and his companion admitted to

Officer Ruskey that they had been drinking. The appellant failed to satisfactorily

perform three field sobriety tests. An intoximeter test, subsequently administered

at the police station, reflected a breath alcohol level of .28 percent. Ruskey

testified that there was no doubt in his mind that the appellant was intoxicated on

the night in question and that the appellant’s ability to operate a vehicle “was

very impaired.”




       At trial, the appellant admitted that he was intoxicated when he entered


                                         2
his vehicle. However, although the appellant conceded that he was seated

behind the steering wheel when the officer approached his vehicle and that he

had his car keys “out,” he denied starting the engine or turning on the car’s

headlights. Moreover, the appellant denied any intent to drive his vehicle from

the parking lot. He explained that, earlier that evening, he had called his nephew

and had asked his nephew to drive him home, because he knew that he was too

intoxicated to drive. According to the appellant, he was simply awaiting his

nephew’s arrival when approached by Officer Ruskey. The appellant’s nephew

also testified at trial and confirmed that he had been called by his uncle and

asked to drive him home. After deliberating, the jury found the appellant guilty of

driving under the influence.



                                     ANALYSIS

       The appellant challenges the sufficiency of the evidence supporting his

conviction for driving under the influence of an intoxicant. Tenn. Code Ann. §

55-10-401(a) (1993) provides: “It is unlawful for any person or persons to drive or

to be in physical control of any automobile ... on any ... premises which is

generally frequented by the public at large, while under the influence of any

intoxicant ... .” The appellant concedes that he was under the influence of an

intoxicant at the time of his arrest and that, technically, he was in physical control

of his vehicle, which was located in a public parking lot. However, despite the

absence of any language in the drunk driving statute requiring a culpable mental

state, the appellant asserts that the crime of driving under the influence requires

an intent to operate a vehicle.



       In support of his argument, the appellant relies upon Tenn. Code Ann. §

39-11-102(b)(1991) and Tenn. Code Ann. § 39-11-301(b) and (c) (1991). Tenn.

Code Ann. § 39-11-102(b) provides that “[t]he provisions of parts 1-6 of this

chapter apply to offenses defined by other laws unless otherwise provided by


                                          3
law.” Tenn. Code Ann. § 39-11-301 provides:

       (b) A culpable mental state is required within this title unless the
       definition of an offense plainly dispenses with a mental element.
       (b) If the definition of an offense ... does not plainly dispense with a
       mental element, intent, knowledge, or recklessness suffices to
       establishes the culpable mental state.




       “The provisions of [the criminal code] shall be construed according to the

fair import of their terms, including reference to judicial decisions and common

law interpretations, to promote justice, and effect the objectives of the criminal

code.” Tenn. Code Ann. § 39-11-104 (1991). In determining the application of

Tenn. Code Ann. § 39-11-102(b) and 39-11-301(b) and (c) to the driving while

intoxicated statute, we note that this court has previously observed that there is

no culpable mental state required for guilt of driving under the influence. State v.

Fiorito, No. 03C01-9401-CR-00032 (Tenn. Crim. App. at Knoxville, November

27, 1995). See also State v. Mabe, No. 03C01-9402-CR-00051 (Tenn. Crim.

App. at Knoxville, October 25, 1994)(“we doubt that the offense [of driving under

the influence] requires as an element that the defendant have the specific intent

to drive the vehicle, in addition to having physical control”). Indeed, considering

our supreme court’s decision in State v. Lawrence, 849 S.W.2d 761 (Tenn.

1993), the definition of the offense of driving under the influence “plainly

dispenses with a mental element.” See Tenn. Code Ann. § 39-11-301. In

Lawrence, our supreme court, in construing the meaning of “physical control,”

remarked:

       It is our opinion that the Legislature, in making it a crime to be in
       physical control of an automobile while under the influence of an
       intoxicant, “intended to enable the drunken driver to be
       apprehended before he strikes.” We agree with the observation
       that “[a] motor vehicle is recognized in the law as a dangerous
       instrumentality when in the control of a sober person; in the control
       of a drunk, the dangerous instrumentality becomes lethal.
       Therefore ... the court [should interpret] the drunk driving statute in
       a way that [keeps] drunks from behind the steering wheels of motor
       vehicles, even when the drunk need[s] to ‘sleep it off.’”

Lawrence, 849 S.W.2d at 765 (emphasis added). Contrast State v. Love, 897


                                          4
S.W.2d P.2d 626, 628-630 (Ariz. 1995). In other words, in enacting the driving

while intoxicated statute, the legislature desired not only to prohibit the operation

of a vehicle by an intoxicated individual, but also to remove from the inebriated

the option of operating a vehicle. Accordingly, the supreme court quoted with

approval the following language:

       “We believe that an intoxicated person seated behind the steering
       wheel of a motor vehicle is a threat to the safety and welfare of the
       public. The danger is less than where an intoxicated person is
       actually driving a vehicle, but it does exist. The defendant when
       arrested may have been exercising no conscious violation with
       respect to the vehicle, still there is a legitimate inference to be
       drawn that he placed himself behind the wheel of the vehicle and
       could have at any time started the automobile and driven away.”

Id. at 765 n.2 (citing Hughes v. State, 535 P.2d 1023, 1024 (Okla.

1975))(emphasis added).



       Thus, by defining the offense of driving under the influence to encompass

the mere physical control of a vehicle, the legislature clearly signaled its intention

to create a crime imposing strict liability. It is for the legislature to determine

whether the public injury threatened by those driving under the influence is so

great as to justify imposition of strict liability.

       While the general rule at common law was that the scienter was a
       necessary element in the indictment and proof of every crime, and
       this was followed in regard to statutory crimes even where the
       statutory definition did not in terms include it, there has been a
       modification of this view in respect to prosecutions under statutes
       the purpose of which would be obstructed by such a requirement.
       It is a question of legislative intent to be construed by the court. It
       has been objected that punishment of a person for an act in
       violation of law when ignorant of the facts making it so, is an
       absence of due process of law. But ... the State may in the
       maintenance of a public policy provide “that he who shall do them
       shall do them at his peril and will not be heard to plead in defense
       good faith or ignorance.”

United States v. Balint, 258 U.S. 250, 251-252, 42 S.Ct. 301, 302

(1922)(citations omitted).



       We note that, in order to illustrate his argument, the appellant in his brief

poses several hypothetical situations, including the scenario in which an

                                              5
intoxicated and unconscious individual is carried to his car by his companions

and left in the vehicle, resulting in his subsequent discovery by a police officer.

However, in general, a minimum requirement for criminal liability is the

performance of a voluntary act. See Model Penal Code § 2.01 (1985).1 A

voluntary act is a bodily movement performed consciously as a result of effort or

determination. Id. Accordingly, in order to be subject to criminal liability under

Tenn. Code Ann. § 55-10-401(a), a defendant would have to voluntarily place

himself in physical control of his vehicle.



       In this case, it is undisputed that the appellant voluntarily placed himself in

physical control of his vehicle while under the influence of an intoxicant.

Therefore, we conclude that a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994), cert. denied,    U.S.    , 115 S.Ct. 743 (1995); Tenn. R. App. P.

13(e). See also State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied,

507 U.S. 954, 113 S.Ct. 1368 (1993); State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429 (1984).



       The judgment of the trial court is affirmed.




                                    ____________________________________


       1
        An objective of the criminal code is to “give fair warning of what conduct
is prohibited, and guide the exercise of official discretion in law enforcement, by
defining the act and the culpable mental state which together constitute an
offense.” Tenn. Code Ann. § 39-11-101(2) (1991). Although the driving while
intoxicated statute eliminates the necessity for a culpable mental state, the
statute does not eliminate the necessity for some “act.” Tenn. Code Ann. § 55-
10-401(a); Tenn. Code Ann. § 39-11-102(b); Tenn. Code Ann. § 39-11-301(b).

                                          6
                          DAVID G. HAYES, Judge




CONCUR:



_________________________________
JOE B. JONES, Presiding Judge


_________________________________
PAUL G. SUMMERS, Judge




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