         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 22, 2009 Session

             STATE OF TENNESSEE v. ALPHEUS LERONE LOWE

                    Appeal from the Criminal Court for Davidson County
                        No. 2006-D-2766 Mark J. Fishburn, Judge



                    No. M2008-00766-CCA-R3-CD - Filed October 21, 2009


At the conclusion of a jury trial, Appellant was convicted of DUI, third offense. The trial court
sentenced Appellant to eleven months and twenty-nine days with all but 120 days suspended. The
rest of the sentence was to be served on supervised probation. On appeal, Appellant argues that the
evidence was insufficient to support his conviction of DUI and that the trial court erred in neglecting
to give the Allen or dynamite charge when the jury was unable to reach a verdict. We conclude that
the evidence was sufficient and that the use of the Allen or dynamite charge is no longer approved
of by our supreme court. Therefore, the judgment of the trial court is affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.

J. Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Alpheus Lerone Lowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General, and Kyle Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION

                                        Factual Background

       On February 26, 2005, Corporal Daniel Okert of the Goodlettsville Police was on patrol on
Long Hollow Pike. At 3:15 a.m., Corporal Okert drove past a gas station and saw an individual
walking toward a Cadillac. As the individual approached his car, he fell over a garbage can onto the
ground. The garbage can was about waist-high. Okert became concerned and turned around to
check on the man. The Cadillac had left the gas station by the time the officer had turned around.
Okert began to follow the Cadillac and realized that the driver of the Cadillac was exceeding the
speed limit of 40 miles per hour.

        The Cadillac drove about a quarter of a mile and pulled into the parking lot of another gas
station. Corporal Okert saw a man exit the driver’s side of the Cadillac wearing the same clothes
as those worn by the man who fell over the garbage can at the previous gas station. Appellant was
the driver of the Cadillac and its only occupant. Appellant was unsteady on his feet and smelled of
alcohol. As Okert spoke with Appellant, he noticed that Appellant’s speech was slurred and his eyes
were bloodshot. Okert administered the walk-and-turn test and the one-legged stand test. Appellant
was unable to successfully perform either test. The officer also asked Appellant to touch his thumb
to each of his fingers individually and count as he did so. Appellant had difficulty bringing his
thumb and fingers together.

        Corporal Okert arrested Appellant for driving under the influence (DUI) and transported him
to the Goodlettsville Police Department. Okert went over the implied consent law with Appellant
who refused to take a breathalyzer test.

        On October 23, 2006, the Davidson County Grand Jury indicted Appellant for DUI, third
offense, driving with a revoked driver’s license, and violation of the implied consent law. On
August 13 and 14, 2007, the trial court held a jury trial. The trial court dismissed the charge of
driving on a revoked license due to lack of evidence. The jury retired to deliberate. About one and
a half hours after retiring, the jury sent the trial court a message that it was deadlocked. Appellant
made a motion for a mistrial. The trial court denied the motion. The trial court reconvened the jury
in the courtroom. The trial court questioned the foreman as to how many votes the jury had taken
and what the chances were of any members of the jury changing their vote. The trial court stated that
it did not want to know the breakdown of the votes one way or the other. The trial court then
concluded that the discussion had not gotten to a point where any members of the jury were saying
that they were not going to change their vote. The court was of the opinion that the members of the
jury remained open-minded. The trial court sent the jury back to continue deliberating. The jury
came back with a guilty verdict for the DUI charge. The parties stipulated that Appellant had two
previous convictions for DUI and the trial court sentenced Appellant for DUI, third offense. Both
parties waived a written presentence report. The trial court sentenced Appellant to eleven months
and twenty-nine days and suspended all but 120. The balance of the sentence was ordered to be
served on supervised probation. The trial court also imposed the mandatory minimum fine of
$1,100.

       Appellant filed a timely notice of appeal.




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                                             ANALYSIS

                                    Sufficiency of the Evidence

        Appellant argues that the evidence is insufficient to support his conviction for DUI. The
State disagrees.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning
the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual
issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

        Tennessee Code Annotated section 55-10-401(a)(a)(1) states, “It is unlawful for any person
to drive or to be in physical control of any automobile or other motor driven vehicle on any public
roads . . . while: (1) Under the influence of any intoxicant . . . .” On appeal, Appellant argues that
the evidence was insufficient to meet the requirements of this statute because there was no proof of
bad driving, there was no physical evidence as to an intoxicant present in the vehicle, and the walk-
and-turn test and the one-legged stand test are both less than 70% accurate. The statute does not
require “bad driving” or the physical presence of an intoxicant. The statute only requires that the
individual in control of an automobile be under the influence of an intoxicant. Clearly, the jury
concluded that Appellant was indeed driving the Cadillac. His slurred speech, the odor of alcohol
about his person, and his failure to satisfactorily perform the field sobriety tests showed that he was
under the influence of an intoxicant.

       Under the topic of sufficiency of the evidence, Appellant argues the jury should have rejected
testimony regarding his performance of the field sobriety test based on Okert’s testimony that the
walk and turn test is only 68% accurate and the one-legged stand test is only 65% accurate.


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However, with regard to field sobriety tests, our supreme court determined that an officer could
testify as to the results of those tests in State v. Murphy, 953 S.W.2d 200 (Tenn. 1997). The court
stated the following:


        For example, if a police officer testifies that the defendant was unable to walk a
        straight line or stand on one foot or count backwards, a jury needs no further
        explanation of why such testimony is relevant to or probative on the issue of the
        defendant’s condition. A juror can rely upon his or her personal experience or
        otherwise obtained knowledge of the effects of alcohol upon one’s motor and mental
        skills to evaluate and weigh the officer’s testimony.


Murphy, 953 S.W.2d at 203. Clearly, evidence regarding a defendant’s performance on such tests
and the accuracy of such tests as a measure of driver’s impairment are issues of fact and go the
weight rather than the admissibility of this evidence. These issues are determined by the trier of fact.
The jury obviously determined that the evidence presented by Corporal Okert regarding the two field
sobriety tests, in part, proved that Appellant was under the influence of an intoxicant.

        Therefore, this issue is without merit.

                                              Deadlocked Jury

        Appellant also argues that the trial court erred because it “did not utilize the Allen or
dynamite charge to urge the deadlocked jurors to re-evaluate their decision.” The State argues that
the Allen or dynamite charge has been expressly rejected by our supreme court.

          Tennessee adopted its version of the Allen or “dynamite” charge in Simmons v. State, 281
S.W.2d 487 (1955).1 The Simmons instruction exhorted the jurors to listen to the arguments of the
other jurors “with a disposition to be convinced” and encouraged dissenters to ask themselves
whether they might not “reasonably doubt” the correctness of their judgment as most members of
the jury did not agree with them. Simmons v. State, 281 S.W.2d at 490. In Kersey v. State, 525
S.W.2d 139 (Tenn. 1975), our supreme court concluded that “the interests of justice demand the
rejection of the “dynamite charge” as adopted in Simmons. Kersey, 525 S.W.2d at 144. The
Supreme Court recognized that the right to trial by jury must not be impaired or encumbered, and
that “[a]ny undue intrusion by the trial judge into this exclusive province of the jury, is an error of
the first magnitude.” Id.; see also Vanderbilt Univ. v. Steely, 566 S.W.2d 853, 854 (Tenn. 1978).
If a trial judge’s effort to avoid a mistrial reaches the point [that] a single juror may be coerced into
surrendering views conscientiously held, the jury’s province is invaded and the requirement of
unanimity is diluted. Kersey, 525 S.W.2d at 144. The Kersey court stated the following:


        1
           The charge originated first in Commonwealth v. Tuey, 62 Mass. 1 (1851) and came to national attention in
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).

                                                       -4-
        Under the inherent and the statutory supervisory power of this Court, we advise the
        trial bench that when a jury’s deliberations have not produced a verdict, and it returns
        to the courtroom and so reports, the presiding judge should admonish the jury, at the
        very outset, not to disclose their division or whether they have entertained a
        prevailing view. The only permissive inquiry is as to progress and the jury may be
        asked whether it believes it might reach a verdict after further deliberations. If the
        trial judge feels that further deliberations might be productive, he may give
        supplemental instructions in accordance with subsequent portions of this opinion.
        See State v. Hutchins, 43 N.J. 85, 202 A.2d 678 (1964).


Id. at 141.

         In the case sub judice, the trial court brought the jury back into the courtroom and specifically
admonished them not to disclose the nature of the voting up to that point. The trial court went on
to determine that further deliberations could possibly yield a verdict. It appears from the record that
the trial court followed the direction of our supreme court set out in Kersey. We find no error with
regard to the denial of the motion for mistrial.

        Therefore, this issue is without merit.

                                           CONCLUSION

        For the foregoing reasons, we affirm the judgment of the trial court.




                                                  ___________________________________
                                                  JERRY L. SMITH, JUDGE




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