            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                        FILED
                               AT KNOXVILLE                         June 2, 1999

                                                                  Cecil Crowson, Jr.
                       FEBRUARY 1999 SESSION                      Appellate C ourt
                                                                      Clerk




STATE OF TENNESSEE,        )
                           )      C.C.A. No. 03C01-9806-CC-00213
      Appellee,            )
                           )      Blount County
v.                         )
                           )      Honorable D. Kelly Thomas, Jr., Judge
CHARLES R. BROWN,          )
                           )      (DUI)
      Appellant.           )




FOR THE APPELLANT:                FOR THE APPELLEE:

Charles Dungan                    John Knox Walkup
307 College Street                Attorney General & Reporter
Maryville, TN 37804               425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  R. Stephen Jobe
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Michael L. Flynn
                                  District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804-5906

                                  Charles Carpenter
                                  Assistant District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804-5906

                                  William R. Reed
                                  Assistant District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804-5906



OPINION FILED: ___________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE


                               OPINION
       The appellant, Charles R. Brown, appeals as of right from his conviction for driving

under the influence of an intoxicant (DUI) by a Blount County jury. The defendant was

sentenced to eleven months and twenty-nine days. He was ordered to serve forty-eight

hours in the county jail before being placed on supervised probation for eleven months and

twenty-seven days. The defendant was also fined $350. In this direct appeal, the

defendant presents two issues: (1) whether the evidence was sufficient to support the

finding of guilt beyond a reasonable doubt; and (2) whether the trial court erred in charging

the jury.



       Upon reviewing the record in this cause, the briefs of the parties, and appropriate

law, we affirm the trial court’s judgment.



                                     BACKGROUND



       At approximately midnight on January 24, 1996, the Maryville Police Department

received a disturbance call from the Winn-Dixie Supermarket. Officer Christopher C. Tuck,

in response to the call, observed a 1990 maroon Cadillac parked in the fire lane in front of

the supermarket. Officer Tuck observed the defendant sitting behind the steering wheel

of the Cadillac. The defendant was the only person in the car. Upon approaching the

defendant, Officer Tuck detected a very strong odor of alcohol on the defendant’s breath.

The defendant’s speech was slurred, and he appeared to be impaired. The keys were in

the ignition of the automobile. Officer Tuck found one empty bottle of alcohol and one

sealed bottle of alcohol in the Cadillac.



       The defendant performed three field sobriety tests, of which he failed two. He was

arrested for DUI and taken to the Blount County Memorial Hospital for a blood-alcohol test.

The defendant consented to the test, which was forwarded to the Tennessee Bureau of

Investigation Crime Laboratory for analysis. Officer Tuck identified a Crime Laboratory

report which revealed the defendant had .22 percent ethyl alcohol in his blood.




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       Shelby Jean Brown, the defendant’s mother, testified that her son, who had not

been drinking, borrowed her Cadillac on the day in question. Mrs. Brown stated that her

car had a low fuel indicator light that flashed when the tank was low in gas. She did not

allow the gas tank to empty below halfway before refilling.



       Debbie Brown, the defendant’s wife, testified that she arrived at her mother-in-law’s

house after work to pick up their son. The defendant was already there. Mrs. Brown had

taken their family van to work, so her husband had borrowed his mother’s car. Mrs. Brown

left around 9:00 p.m. At approximately 11:20 p.m., Mrs. Brown received a phone call from

her husband, who had run out of gas at the Winn-Dixie and needed a ride home. Due to

the lateness of the hour, Mrs. Brown called her father-in-law, Charles E. Brown. He agreed

to go and get his son. When her husband called again, Mrs. Brown advised him that his

father was on the way. Mrs. Brown testified that, during the first phone call, her husband

sounded normal, but, upon the second call, she suspected he had been drinking.



       Charles E. Brown, the defendant’s father, testified that he received a phone call

from his daughter-in-law to pick up his son, who had run out of gas at the Winn-Dixie.

Upon arrival, Mr. Brown saw the car, but did not see his son. Mr. Brown opened the car

door with an extra set of keys, turned on the ignition switch, and observed the low fuel light

blinking. Two gas stations in the nearby area were closed, so Mr. Brown left the Cadillac

and went home. Mr. Brown later learned his son had been arrested. The next morning he

went to the Winn-Dixie to get the Cadillac. Mr. Brown drove the car about one-half of a

block to obtain some gas. Mr. Brown agreed that, by pushing the right button, the car’s

computer would reflect the distance to empty, but he did not do so.



       The defendant testified that he was a self-employed taxi operator and ran a van

service to the local airport. On January 24, 1996, the defendant borrowed his mother’s

Cadillac, since his wife had taken their van to work. At 11:20 p.m. on the night in question,

the defendant left his mother’s home for the Winn-Dixie. He took a bottle of champagne

and a bottle of vodka with him. As the defendant was leaving his mother’s home, the fuel



                                              3
indicator was on “L,” but was not blinking. As the defendant approached Niles Ferry Road,

the light started blinking, indicating that “it’s getting ready to run out of gas.” The defendant

stopped in front of the Winn-Dixie and called his wife. While seated in the car waiting for

his wife, the defendant poured some vodka into a thirty-two ounce coke and started

drinking. The defendant testified, “[I]t was just cold and . . . I didn’t know . . . how long I

was going to have to wait.” While waiting, the defendant went inside the Winn-Dixie, where

he had a misunderstanding with a cashier over a coupon. The defendant returned to his

car and continued drinking vodka. The defendant testified he was talking to his wife when

the police arrived. The defendant acknowledged that he could have started the car at

anytime, but he had no intention of doing so. The defendant also acknowledged that, if the

Cadillac had had gas, it could have been driven that night, and there was nothing

mechanically wrong with the car.



                                    APPELLATE ISSUES

                                               A.

                                  Sufficiency of Evidence



       The defendant contends there was no evidence that he consumed any alcohol prior

to his arrival at the Winn-Dixie. He further contends that the evidence supports the fact

that he became intoxicated after he parked the car and stopped the engine after running

out of gas. Thus, the defendant argues that he was not in physical control of the vehicle.



       When reviewing a trial court’s judgment, the appellate court will not disturb a verdict

of guilty unless the facts in the record and inferences which may be drawn from it are

sufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond

a reasonable doubt. Tenn. R. App. P. 13 (e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Initially, a defendant

is cloaked with the presumption of innocence. Tuggle, 639 S.W.2d at 914. However, a

jury conviction removes the presumption of innocence and replaces it with one of guilt, so

that, on appeal, a convicted defendant has the burden of demonstrating that the evidence


                                               4
is insufficient to support the conviction. Id.



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

the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Instead, the state

is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable

inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). 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. Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994). This rule is applicable to findings of guilt predicated upon the direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).



       Clearly the evidence supports the jury’s finding that the defendant was in physical

control of his mother’s car. The morning after the defendant’s arrest, the defendant’s

father drove the Cadillac to a nearby station to obtain gas. The defendant acknowledged

that the car was capable of being driven and that he had the keys and was sitting behind

the wheel of the car when he was observed by the arresting officer. Although the car’s fuel

indicator light was blinking, the car did have some gas and, thus, was moveable. There

is no merit to this issue.

                                                 B.

                               Erroneous Jury Instruction



       The defendant contends the trial court erred in defining physical control for the jury

by failing to include the language “the extent to which it appears that the defendant will

drive in the foreseeable future.” The state counters that the trial court properly instructed

the jury regarding “physical control.”



       The defendant complains that the jury was deprived of the opportunity to determine


                                                 5
if the defendant was likely to drive before his arrest, citing State v. Carter, 889 S.W.2d 231,

234 (Tenn. Crim. App. 1994). In Carter, the defendant was arrested for DUI in a parking

lot. The defendant had taken some medications, which indicated the defendant was under

the influence.   No one saw the defendant driving the automobile, thus requiring a

determination to be made as to whether the defendant was in “physical control” of the

vehicle under the definition of the DUI statute. In reversing the defendant’s conviction, this

Court, citing Hester v. State, 196 Tenn. 680, 270 S.W.2d 321 (Tenn. 1953), stated:


              The danger to be alleviated by the statute is that of a driver
              who either is driving or has driven while under the influence or
              because of physical control over the vehicle, appears he or
              she will drive in the foreseeable future while still under the
              influence. In the instant case, there is no support in the record
              to indicate that the vehicle could be driven under its own
              power. . . .


Carter, 889 S.W.2d at 234.



       The trial court in the present case denied the defendant’s special request to enlarge

on the definition of “physical control” as set forth in State v. Lawrence, 849 S.W.2d 761,

765 (Tenn. 1993). The trial court, in considering Hester and Carter, held that the dicta,

“because of physical control of the vehicle appears he or she will drive in the foreseeable

future while still under the influence,” did not require additional proof that a person intended

to drive in the foreseeable future or did not intend to drive.



       The trial court instructed the jury on the following definition of “physical control”:


              For a person to be in physical control of a motor vehicle, a
              person must be present, at or near a 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.

              When the issue is the extent of the defendant’s activity
              necessary to constitute physical control you should take into
              account all the circumstances. That is the location of the
              defendant in relation to the vehicle, the whereabouts of the
              ignition key, whether the motor was running, the defendant’s
              ability but for his intoxication to direct the use or non-use of the

                                               6
              vehicle, and the extent to which the vehicle itself is capable of
              being operated or moved under its own power.



      We find this jury instruction to be a correct statement of the law. Lawrence, 849

S.W.2d at 765. We agree with the state that the facts of the present case are markedly

different from those recited in Carter. Thus, the defendant’s requested instruction is not

applicable to this case. To give this additional instruction in physical control cases, the

state would be compelled to prove an intent on the part of a defendant. The state is not

required to show intent. Besides, who knows what lurks in the mind of a person with a

blood-alcohol content of .22 percent?



       In State v. Turner, 953 S.W.2d 213, 215 (Tenn. Crim. App. 1996), per. app. denied

(Tenn. 1997), Judge Hayes, speaking for this Court, stated:


              In determining the application of Tenn. Code Ann. § 39-11-
              102(b) and 39-11-301(b) and (c) [mens rea] 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, 1995 WL 695031 (Tenn. Crim. App. at
              Knoxville, November 27, 1995). See also State v. Mabe, No.
              03C01-9402-CR-00051, 1994 WL 583210 (Tenn. Crim. App.
              at Knoxville, October 25, 1994).



       The special requested instruction of the defendant is contrary to the established law

in Tennessee in that it would require the state to prove that the defendant had a specific

intent to drive the vehicle. We find the trial court’s jury instruction on physical control

proper under the facts of this case. There is no merit to this issue.



       The trial court’s judgment is affirmed.




                                           ________________________________________
                                           L. T. LAFFERTY, SENIOR JUDGE



CONCUR:

                                              7
___________________________________
JOSEPH M. TIPTON, JUDGE




___________________________________
JERRY L. SMITH, JUDGE




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