         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           MAY SESSION, 1997         November 16, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,          )                   Appellate Court Clerk
                                  C.C.A. NO. 01C01-9605-CC-00223
                             )
      Appellee,              )
                             )
                             )    FRANKLIN COUNTY
VS.                          )
                             )    HON . THOM AS W. G RAHAM
PAUL E. MATHIS,              )    JUDGE
                             )
      Appe llant.            )    (Direct Appeal - Sentencing)




FOR THE APPELLANT:                FOR THE APPELLEE:

PHILIP A. CONDRA                  JOHN KNOX WALKUP
District Public Defender          Attorney General and Reporter
12th Judicial District
204 Betsy P ack Drive             KAREN M. YACUZZO
Jasper, TN 37347                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  J. MICHAEL TAYLOR
                                  District Attorney General

                                  STEVEN M. BLOUNT
                                  Assistant District Attorney
                                  1 South Jefferson
                                  Win cheste r, TN 37 398



OPINION FILED ________________________

CONVICTION FOR RESISTING ARREST AFFIRMED;
CONVICTION FOR PUBLIC INTOXICATION REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                     OPINION


       Appellant Paul E. Mathis was convicted on July 20, 1995 by a jury in the

Fran klin County Circuit Court of one count of public intoxication and one count

of resisting arrest.     On September 12, 1995, the trial court conducted a

sentencing hearing. Respecting the public intoxication conviction, Appellant

received a suspended sentence of thirty d ays incar ceration in the Fran klin Cou nty

jail, thirty days probation to begin immediately, and a $25.00 fine and costs. For

the resistin g arres t convic tion, the trial court imposed a concurrent sentence of

six months incarceration in the cou nty jail, all of which was suspe nded save forty-

eight hours incarc eration . On th is direct appeal, Appellant presents three issues

for our consideration: (1) whether the trial court erred by failing to impanel the

jury in compliance with Rule 24, T ENN. R. C RIM. P.; (2) whether the trial court

impro perly responded to questions submitted by the jury during its deliberations;

and (3) whether the evidence was insufficient to sustain Appellant's conviction for

resisting a rrest.

       After a review of the record , we affirm the judgm ent of the trial court as to

the conviction for resisting arrest. However, we must reverse the conviction for

public intoxica tion an d rem and th at cas e for a n ew trial.



                           I. FACTUAL BACKGROUND

       The proof shows that on August 19, 1994, Appellant consumed alcohol

throughout the day and, the refore, did not wan t to drive. Appe llant telephoned

Mr. David Smith, his brother-in-law, and asked Smith to drive Appellant to a




                                           -2-
friend's house . Appellant rode in the front passenger seat while his brother-in-law

drove the au tomo bile. Mr . Jaso n Stee le 1 sat in the b ack sea t.

        Shortly before 11:00 P.M. on Augus t 19, a dispatcher for the Winchester

Police Department issued a bulletin alerting officers to watch for a vehicle whose

description and licen se plate number matched those of the automobile in which

Appellant was a passenger. The dispatcher informed officers th at the ve hicle

was being o perated erratically.

        Officer Michael Doty of the Winchester Police Department testified that he

received the dispatch while patrolling Highway 130 and North High Street. Officer

Doty first encountered the white Mustang on North High Street. He followed and

observed the car for approximately six to eight blocks. During this time, the

autom obile moved from its lane five times--three times to the inside lane and

twice to the outside lane. After stopping the vehicle, Officer Doty approached the

driver's side of the car and, upon smelling alcohol, asked the driver to step from

the automobile and to produce his driving license. Officer Doty then called for

backup, and Officers Greg Branch and John Stewart soon arrived at the scene.

Officer Doty was invo lved pr imarily w ith the d river of th e auto mob ile and dealt

only briefly with Ap pellant. Officer Doty testified, how ever, that Appellant smelled

strong ly of alcohol. Appellant sat quietly in the c ar and w atched as Office r Doty

tested Mr. Smith to determine whether or not Smith was intoxicated.

        Appellant was still sitting in the front passenger seat of the vehicle when

Officers Branch and Stewart arrived. Officer Branch approached the passenger

side of the vehicle and asked Appellant to produce his license. Though Appellant

reached into his pocket, he did not remove anything. Because the darkness


   1
     Mr. David Smith, the driver of the vehicle, and Mr. Jason Steele, the back seat passenger, both we re
Appellant's co-defendants, and all three cases were joined for trial. However, the jury acquitted both Mr.
Smith and Mr. Steele of the charged offenses.

                                                  -3-
prevented Officer Branch from s eeing clearly inside the vehicle, he could not see

the item Appellant attempted to retrieve from his pocket. Branch stated that he

asked Appellant to step from the car because he detected a strong odor of

alcoh ol.      Officer Branch testified that upon being asked to step out of the

automobile, Appellant asked the reason for the officer's request. Officer Branch

informed Appellant that he needed to check Appellant both for the safety of the

officers as well as for Appellant's own safety. Appellant refused this first request

and said, "I'm not getting out of the car." Officer Branch the n made two more

reques ts that App ellant get o ut of the ca r, and Ap pellant ag ain declin ed to

comply. Officer Stewart approached the vehicle and observed Officer Branch

make the third request of Appellant.                           Appellant again declined to exit the

autom obile after being aske d for a fourth time to do so. Officer Branch testified

that Officer Stewart attempted to open the door, and Branch reached into the

vehicle to grab Appellant. When he did so, Appellant pulled the door closed,

causing Branch to pu ll his arm from the car to prevent his fingers from being

caugh t.      Officer Stewart again pulled open the door, and Branch sprayed

Appe llant in the face with pepper spray. Officer Branch stated that Appellant

became more combative after being sprayed. Stewa rt grab bed A ppella nt by his

hair, pulled him from the vehicle, and p ulled him to the ground. While Branch

held Appellant on the ground by placin g his knee between Appellant's shoulder

blades, Officers Doty and Bra nch ha ndcuffe d Appe llant. 2 Appella nt continu ed to

fight with the three police officers until the officers plac ed him into the patrol car.




   2
      Officer Stewart testified that Officer Branch's fourth and final request to Appellant consisted of
infor min g Ap pellan t that if he did not vo lunta rily step out o f the v ehic le, Bra nch and S tewa rt wou ld pull h im
out of the car. According to Officer Stewart, Appellant replied, "Go for it, big boy." Neither Officer Doty nor
Officer Branch could rec all Appellant m aking s uch a s tatem ent.

                                                         -4-
                     II. SUFFICIENCY OF THE EVIDENCE

      Appellant challenges the sufficiency of the evidence to s ustain his

conviction for resisting arrest. Th is conten tion has n o merit.

      This Court is obliged to re view challenges to the sufficiency of the

convicting evidence according to certain well-settled principles. A verdict o f guilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof re sts with Ap pellant to d emon strate the in sufficiency of the

convicting evidenc e. Id. On ap peal, "the [S ]tate is entitled to the strongest

legitimate view of the evidence as well as all rea sonab le and leg itimate

inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)).         W here th e suffic iency o f the evid ence is

contested on appea l, the relevant question for the reviewing cou rt is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Co urt is precluded from

reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d

776, 77 9. Finally, T ENN. R. A PP. P. 13(e) provides, "Findin gs of g uilt in criminal

                                          -5-
actions whether by the trial court or jury shall be se t aside if the evid ence is

insufficient to support the findings by the trier of fact of guilt beyond a reaso nable

doubt." See also Matthews, 805 S.W.2d 776, 780.

       Tenn . Code Ann. § 3 9-16-60 2 provide s in part:

            (a) It is an offense for a person to intentionally prevent or
            obstruct anyone known to the pers on to be a law enforcement
            officer. . . from effecting a stop, frisk, halt, arrest, or search of
            any person, including the defendant, by using force against
            the law enforce ment officer or an other.
            (b) . . . [I]t is no defense to prosecution under this section that
            the sto p, frisk, h alt, arre st or se arch w as un lawful.
Tenn. C ode Ann . §§ 39-16-60 2(a) and 39 -16-602(b).

Tenn. Code Ann. § 39-11-106(a)(12) states: "`Force' means compulsion by the

use of phys ical po wer or violenc e and shall be broad ly construe d to accomplish

the purposes of this title." The State bears the burden of proving every element

of the offen se beyo nd a rea sonab le doub t.

       As this Court noted in State v. James Bradley, Tenn. Code Ann. § 39-16-

602(b) reflects a policy decision by our legislature that "the illegality of an arrest

alone will not justify an assault against officers attempting the arrest." C.C.A. No.

03C01-9408-CR-00298, slip op. 1, 5, Monroe Coun ty, (Tenn . Crim. A pp.,

Knoxville, Februa ry 13), cert denied, (Tenn. 1996). In Bradley, we held that the

illegality of the police conduct is irrelevant to determining whether or not the

accused was justified in refusing to c omp ly with a la w enfo rcem ent offic er's

comm ands o r reques ts. Id.

       First, Officer Branch asked Appellant to exit his vehicle. Officer Branch

deemed this necessary in order to check Appellant both for his ow n safe ty as we ll

as that of the officers. Moreover, Officer Branch noted Appellant's slurred speech

and a strong odor of alcohol about him.           Officer Branch also testified that

Appellant was combative. Second, Appellant used force against Officers Branch,



                                          -6-
Stewa rt, and Doty. Specifically, Appellant refused to step out of th e auto mob ile

and pulled the door closed when Officer Stewart opened it. After Officer Branch

sprayed Appella nt with the s tun solutio n, Appe llant continued to struggle, kick,

and fight.       The fo regoing amply d emon strates tha t Appella nt used force to

obstruct the officers from effe ctuating h is arrest. See State v . Ron ald David Lee,

No. 03-C-0 1-9410 -CR-0 0393, s lip op. 1, 7, Cocke C ounty, (T enn. C rim. App .,

Knoxville, July 6, 1995) (holding that the evidence was sufficient to sustain the

Appe llant's conviction for resisting arrest where the Appellant wrestled with the

arresting officer to preven t that officer from hand cuffing him).

        The jury was entitled to accredit the testimony of the prosecution

witnesses, and it apparently did so. We decline to disturb th at verd ict on th is

appe al.



                                  III. IMPANELING THE JURY

        Appellant next complains that the trial court erre d in failing to co mply with

T ENN. R. C RIM. P. 24(c) when im paneling the jury.                           Ap pellant's failu re to

conte mpo raneo usly object to the court's procedure for impaneling the jury has

waived this issue on appeal. T ENN. R. A PP. P. 36(a). See als o State v. S mith,

857 S.W.2d 1, 20 (Tenn. 1993) (holding that by not contesting the trial cou rt's jury

selection procedure until after the case was submitted to the jury, rather than

contemp oraneous ly objecting, the accu sed waived th at issue on ap peal). 3




   3
     It does appear that the trial court deviated from the procedure outlined in then existing TE N N . R. C RIM .
P. 24(c) for impaneling jurors. In 1997 Rule 24(e) wa s amend ed and would now allow the proced ure
employed by the trial judge.

                                                     -7-
      IV. TRIAL COURT'S RESPONSES TO QUESTIONS POSED BY JURY

DURING DELIBERATIONS

            Appellant next asserts that the trial court erroneously responded to

questions posed by the jury during its deliberations. We disagree.

            During its deliberations, the jury posed both written and oral que stions to

the court. One of the written questions aske d for a d efinition of the te rm "pu blic

place."



                              A. DEFINITION OF "PUBLIC PLACE"

            Appellant argues that the trial court erred in defining the term "public place"

because the court opted to inform the jury about this Court's opinion in State v.

Lawson, 776 S.W.2d 139 (Tenn. Crim. App. 1989) rather than to read the

definition contained in Tenn. Code Ann. 106(a)(29)4 as requested by defense

coun sel. Spec ifically, Appellant asserts that the court erred by not reading the

final sentence o f Tenn. Co de Ann. § 3 9-11-106(a )(29).

            Outside the jury's presen ce, the court in forme d cou nsel th at it wou ld

respond to the jury's question by discussing our holding in Lawson. The court

refused defense counsel's request to read to the jury Tenn. Code Ann. § 39-11-

106(a)(29).          Because of its opinion that "The only issue for this jury is whether

or not people in the autom obile w ere in a public place," the court believed that

the statutory definition would only confuse the jury. Thus, the court informed the


      4
          Tenn. Code Ann. 39-11-106(a)(29) provides:

                    "Public place" means a place to which the public or a group of persons has
                    access and includes, but is not limited to, highways, transportation facilities,
                    schools, places of amusement, parks, places of business, playgrounds and
                    hallways, lobbies and other portions of apartment houses and hotels not
                    con stitutin g roo ms or ap artm ents desig ned for ac tual re side nce . An a ct is
                    deemed to occur in a public place if it produces its offensive or proscribed
                    consequences in a public place.
Id.

                                                         -8-
jury that "persons in a priva te vehic le are in a pub lic place if they're on a p ublic

road. . . ." 5

         The law governing jury charges is equally applicable to respo nses to

questions subm itted by the ju ry during d eliberation s. The tria l court is oblig ed to

give jury instr uction s that fa irly and a ccura tely set fo rth the a pplica ble law as it

applies to the facts of a particular case. State v. Stodda rd, 909 S.W.2d 454, 460

(Tenn. Crim. A pp. 1994). Moreover, the court may decline a special request

where the court's jury instruction provides a complete statement of the law. Id.

(citing State v. Middlebrooks, 840 S.W.2d 317, 335 (Tenn. 1992). In State v.

Cassan dra Mathis, Mattie Lue Drake and Amanda Drake , this Co urt held that it

is perm issible for trial courts to employ appellate opinion s when form ulating jury

charges. C.C.A . No. 87-11-III, slip. op. 1, 7, Williamson County (Tenn. Crim.

App., Nashville, March 18, 1988). The statutory definition of "public place" is not

mark edly different from this Court's explication of that term in the Lawson

decision. W e find that the trial c ourt did not err in explain ing to th e jury this

Court's holding in the Lawson decision.



                    B. IMPROPER COMMENT ON THE EVIDENCE

         In addition to the written submission, the following co lloquy took place

between the court and a co ncerned juro r:

                 JUROR: My other question concerns having a designated
                 driver. If one is under the influence and he ask [sic] someone

   5
       This is an accurate paraphrase of our holding in Lawson, 776 S.W.2d 139:

                 A "public p lace" is a pla ce to wh ich the ge neral pub lic has a righ t of acce ss. A
                 location to which such a right of access exists does not lose its character as a
                 "public place " sim ply beca use o thers a re not p resen t to obs erve th e defe ndan t's
                 drunken condition. Moreover, we conclude, as have courts in other jurisdictions
                 that the Appellant's presence inside a vehicle on a public road does not alter the
                 "public" character of that road or convert the Appellant's condition into one of
                 private rather than public intoxication.
Id. at 140-41.

                                                      -9-
             to drive, because they feel they're not able to. And we hear
             so much about this in the media and so if you have a
             desig nated driver and let's just say I'm sitting somewhere in
             the car an d you k now, h alf out o f this world, so I've got
             someone driving for me.
             THE COU RT: A nd the y mes s up a nd you end u p in a pub lic
             place in an intoxicated stage [sic], you may run the risk there.
             JUROR: So am I harming other people and properties? How
             am I going to get hom e from the bar? If I get in the car and
             drive down the road I really am in trouble.


The court responded:

             This is something for you to dec ide as to whe ther or not this
             individual was truly in danger of harming himself or others.
             The Tennessee Supreme Court says if the explanation has
             been raised tha t a person might walk down the road and get
             hit by a car if the y were left in this situation. They've said that
             that does comply with a requirement, at least, a minimum
             requirement that wo uld support a jury's finding that the person
             was poss ibly in danger of harming hims elf or oth ers, bu t this
             is one of. . . those com mon se nse things tha t you all are
             going to h ave to ap ply to the fac ts in this cas e. . . .


Defense counsel lodged an objection to the court's discussion of the Tennessee

Supre me C ourt case .

      Tenn . Code Ann. § 3 9-17-31 0 provide s in part:

            (a) A person commits the offense of public intoxication who
            appears in a public place under the influence of a controlled
            substance or any other intoxicating substance to the degree
            that:
            (1) The offender may be endangered;
            (2) There is endangerment to other persons or property; or
            (3) The offender unreason ably annoys p eople in the vicinity.
Tenn. C ode Ann . § 39-17-310 (a).

      Appellant complains that the court's final response constituted improper

comment on the evidence. We agree.

      Article 6, § 9 of the Tennessee Constitution prohibits trial judges from

commenting on the evidence of the case. That section provides, "The Judges

shall not charge juries with respect to matters of fact, but state the testimony and



                                         -10-
declare the law." T enn. C onst. art. 6, § 9. In State v. Suttles, the Tennessee

Supreme Court cautioned, "In all cases the trial judge must be very careful not

to give the jury any impression as to his feelings or to make any statement which

might reflect upon the weight or credibility of evidence or which might sway the

jury." 767 S.W .2d 403 , 406-07 (Tenn. 1989). Our supreme court has also

admonished, "The trial judge should always be extremely careful not to express

or intimate any opinion on any fa ct to be pa ssed u pon by th e jury." Graham v.

McReynolds, 18 S.W . 272, 275 (T enn. 1891 ).

       In this case the efficacy of the public intoxication charge turned on whether

Appellant pose d a da nger to hims elf or oth ers. W hile the trial court c orrect ly told

the jury during the colloquy that they must decide whether the defendant was a

danger to himself or others, the judge went further and offered an example of

such a situation , a fact hypo thetical very s imilar to the instant case as permitting

a finding tha t the defen dant wa s a dan ger to him self. this is in im perm issible

comment on the evidence that we cannot say is harmless under the

circumstances of this case.



       The judgment of the trial court finding Appellant guilty of public intoxication

is rever sed a nd rem ande d for a n ew trial.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                           -11-
CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                              -12-
