              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                   FILED
                                 NOVEMBER 1998 SESSION
                                                                     January 29, 1999

                                                                    Cecil W. Crowson
                                                                   Appellate Court Clerk

STATE OF TENNESSEE,                 )
                                    ) C.C.A. No. 01C01-9711-CC-00551
       Appellee,                    )
                                    ) Williamson County
V.                                  )
                                    ) Honorable Henry Denmark Bell, Judge
                                    )
DONALD W. STEPHENS,                 ) (DUI, 5th Offense)
                                    )
       Appellant.                   )




FOR THE APPELLANT:                     FOR THE APPELLEE:

John H. Henderson                      John Knox Walkup
District Public Defender               Attorney General & Reporter

Eugene J. Honea                        Georgia Blythe Felner
Assistant Public Defender              Counsel for the State
Twenty-first Judicial District         Cordell Hull Building, Second Floor
407-C Main Street                      425 Fifth Avenue North
Franklin, TN 37065-0068                Nashville, TN 37243-0493

                                       Joseph D. Baugh
                                       District Attorney General

                                       Lee Dryer
                                       Assistant District Attorney General
                                       P.O. Box 937
                                       Franklin, TN 37065-0937




OPINION FILED: __________________________________


AFFIRMED


L. T. LAFFERTY, Senior Judge
                                      OPINION



       The appellant, Donald W. Stephens, appeals his conviction for driving under the

influence. See Tenn. Code Ann. § 55-10-401. The sole issue for our review is whether

the evidence at trial was sufficient for the jury to find guilt beyond a reasonable doubt. We

find that it was and AFFIRM the judgment of the trial court.



       Police Officers Brian Myatt and Chris Ivey noticed the appellant’s truck parked in the

edge of a parking lot next to Highway 96 in Fairview, Tennessee. The appellant was in the

driver’s seat, slumped over the steering wheel, and appeared to be unconscious. The

engine of the truck was running, and the lights were on. After repeated attempts, the

officers successfully roused the appellant to check his welfare. The appellant opened the

door of his truck and stumbled from the vehicle. He was awkward and disorientated, and

he smelled of alcohol. When questioned, he admitted to having consumed seven beers;

however, Officer Ivey testified that he appeared to have had “much more.” The officers

administered two field sobriety tests, neither of which the appellant was able to perform

properly. The appellant refused to submit to a third test and admitted that he was drunk.

Based on the above circumstances, the officers arrested the appellant on suspicion of

driving under the influence of alcohol in violation of Tenn. Code Ann. § 55-10-401.



       At the time of his arrest, the appellant admitted that he had driven his truck from

Dickson, Tennessee.1 He said he became tired and pulled over to rest. At trial, however,

the defense denied that the appellant had driven the truck. Rather, the appellant’s

girlfriend, Shirley Ann Wright, testified that she had driven the appellant to the parking lot.

She said that the appellant had called her from a bar and asked her to pick him up

because he was too drunk to drive. Ms. Wright testified that she started driving him home




       1
        It should be noted, however, that the appellant also made other statements from
which it is apparent that he was confused and unaware of what was happening. For
example, although the officers did not stop the appellant or activate their emergency lights,
the appellant asked the officers why they had stopped him and stated that he had pulled
over as soon as he saw the blue lights.

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but, because he became belligerent, she stopped in the parking lot where the officers

found the truck and called her daughter to come and get her.



       On cross-examination, the state asked Ms. Wright to sketch the specific location

within the parking lot where she left the appellant and his truck. Ms. Wright also stated that

the appellant had slid across the seat of his truck and was asleep behind the steering

wheel when she left.



       The appellant argues that this evidence was insufficient for the jury to have found

the elements of the offense beyond a reasonable doubt. More specifically, he argues that

the proof did not conform to the indictment. That is, he does not argue that the proof was

insufficient as to the statutory elements of driving under the influence but, rather, that the

proof was insufficient to prove the indictment, which varied from the statutory language.



       The appellant was convicted under Tenn. Code Ann. § 55-10-401, which provides

that “[i]t is unlawful for any person to drive or be in physical control of any . . . motor driven

vehicle on any . . . premises which is generally frequented by the public at large, while .

. . under the influence of any intoxicant.” (emphasis added). In contrast, the indictment

charged that the appellant “unlawfully did drive and physically control a motor vehicle . .

. while on . . . premises which is frequented by the public at large, at a time when the said

Defendant was . . . under the influence of an intoxicant, . . . in violation of Tennessee

Code Annotated 55-10-401.” (emphasis added).



       Because the indictment used conjunctive language, the appellant asserts that the

state was required to prove both physical control and that the appellant drove. He then

argues that the evidence was insufficient for the jury to conclude beyond a reasonable

doubt that he drove the truck. We do not agree on either point. We conclude that the

variance in the indictment was neither material nor prejudicial; and, even if it were, the

evidence was sufficient to prove the indictment as written.




                                               -3-
       We “approach attacks upon indictments . . . from the broad and enlightened

standpoint of common sense and right reason rather than from the narrow standpoint of

petty preciosity, pettifogging, technicality or hair splitting fault finding.” State v. Hill, 954

S.W.2d 725, 728 (Tenn. 1997). “A variance is not fatal unless it is both material and

prejudicial. A variance is not material unless it either deprives the accused of the

protection against double jeopardy or misleads the accused at trial.” State v. Jones, 953

S.W.2d 695, 700 (Tenn. Crim. App. 1996) (citing State v. Moss, 662 S.W.2d 590, 592

(Tenn. 1984)).

           [A] variance . . . [does] not prejudice the defendant’s rights if
           the indictment sufficiently informed the defendant of the
           charges against him so that he could properly prepare his
           defense and . . . the variance was not such that it would
           present a danger that the defendant could be prosecuted a
           second time for the same offense.

State v. Harper, 735 S.W.2d 360, 368 (Tenn. Crim. App. 1987) (citing Moss, 662 S.W.2d

at 592).



       In the present case, we find that the conjunctive wording of the indictment was

neither material nor prejudicial. Even without reference to the applicable statute, the

indictment was more than sufficient to inform the appellant of the charges against him. By

additionally citing the statute that the appellant was accused of violating, the indictment left

no reasonable question as to the charges that the appellant needed to defend. And, there

is clearly no danger of double jeopardy.



       Even giving effect to the conjunctive language of the indictment, however, we find

that the evidence was sufficient for the jury to find guilt beyond a reasonable doubt. When

an appellant challenges the sufficiency of the evidence, this Court must determine whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of a crime beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest legitimate view of

the evidence and all reasonable inferences that may be drawn therefrom. See State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the

                                               -4-
presumption of innocence enjoyed by defendants at trial and replaces it with a presumption

of guilt. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant bears the

burden of illustrating to this Court why the evidence is insufficient to support the verdict.

See State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).



          The appellant does not contest that he was under the influence of alcohol or that

he was in control of the vehicle. He was found behind the wheel with the engine running,

and the defense’s own witness testified that the appellant was too drunk to drive. The only

point of contention is whether the appellant actually drove his truck on the evening of his

arrest.



          Officer Ivey testified that when he encountered the appellant, the truck was located

“up next to the road in the parking lot.” Ms. Wright later testified that she left the

appellant’s truck in a different area of the parking lot. If, as they were entitled to do, the

jury credited the testimony of both witnesses, the inescapable conclusion is that the truck

was moved. Given that the appellant was found in the driver’s seat with the engine

running, the only reasonable explanation for the movement of the truck is that the appellant

drove it. Thus, we find the circumstantial evidence, by itself, compelling. See State v.

Crawford, 470 S.W.2d 610, 612 (Tenn 1971) (Before one may be convicted of a criminal

offense based upon circumstantial evidence alone, the facts and circumstances "must be

so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant, and that beyond a reasonable doubt.").



          But, the jury need not have relied on circumstantial evidence. The appellant

admitted to the officers that he had driven the truck from Dickson, Tennessee. The

officers’ testimony indicated that the appellant was not coherent; his admission may,

therefore, have been entitled to less weight, but we do not reweigh the evidence. The

testimony was sufficient to go to the jury. It was then for the jury to determine, first,

whether they believed the officers’ account of the appellant’s admission and, second, if so,

whether that admission reflected a true fact.



                                               -5-
       For the reasons above, we find the totality of this evidence more than sufficient for

a rational jury to have found each element of the offense beyond a reasonable doubt,

including that the appellant drove his truck.



       The judgment of the trial court is affirmed.




                                            ______________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



______________________________
JOE G. RILEY, JUDGE




     (Not Participating)
PAUL G. SUMMERS, JUDGE




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