          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                          DECEMBER, 1997 SESSION                  FILED
                                                                  February 9, 1998

STATE OF TENNESSEE,              )   No. 02C01-9606-GS-00201Cecil Crowson, Jr.
                                 )                                Appellate C ourt Clerk
      Appellee,                  )
                                 )   Hardin County
vs.                              )
                                 )   Honorable C. Creed McGinley, Judge
ROGER DAVID BROWDER,             )
                                 )
                                 )    (DUI and Driving on a Revoked License)
      Appellant.                 )



FOR THE APPELLANT:                    FOR THE APPELLEE:

RICHARD W. DeBERRY                    JOHN KNOX WALKUP
Asst. District Public Defender        Attorney General & Reporter
P.O. Box 663
Camden, TN                            DEBORAH A. TULLIS
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      G. ROBERT RADFORD
                                      District Attorney General
                                      P.O. Box 686
                                      Huntingdon, TN 38344

                                      JOHN OVERTON
                                      Assistant District Attorney General
                                      P.O. Box 484
                                      Savannah, TN 38372


OPINION FILED: ____________________


AFFIRMED IN PART;
REVERSED AND DISMISSED IN PART


CURWOOD WITT
JUDGE
                                     OPINION



               The defendant, Roger David Browder, appeals pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure from his judgment of conviction in the

Circuit Court of Hardin County for driving under the influence and driving on a

revoked license, Class A and Class B misdemeanors.        The trial court sentenced

him to concurrent sentences of eleven months and twenty-nine days in the county

jail for driving under the influence and 180 days for driving on a revoked license.

The court suspended all but sixty days of his sentence and ordered the defendant

to serve the sentences consecutively to the sentence in an arson conviction.1 In

this appeal, the defendant contends that his convictions were obtained in violation

of his right to a speedy trial and that the evidence is insufficient to sustain the

convictions.



               For the reasons discussed below, we affirm the defendant’s conviction

for driving under the influence of an intoxicant and reverse and dismiss his

conviction for driving on a revoked license.



               The defendant was arrested on June 24, 1995 and charged with

driving under the influence of an intoxicant and driving while his license was

revoked. An arrest warrant was issued on either June 26 or June 27.2 Browder’s

parole for an earlier arson conviction was revoked as result of his arrest, and he

was returned to the state penitentiary. On September 25, 1995, he filed a pro se

motion for speedy trial. At an appearance in general sessions court on October 20,

1995, he waived his right to a preliminary hearing and the case was bound over to

the grand jury. The trial court did not appoint counsel until November 2, 1995. On


1

      The trial court revoked his driver’s license for one year and assessed a
thousand dollar fine in the DUI case.
2

      The affidavit of complaint is dated June 27, 1995 but indicates that the
warrant issued the previous day. The indictment states that the warrant was
issued on June 27, 1995.

                                         2
April 12, 1996, Browder filed a pro se motion to dismiss for failure to prosecute

under Rule 48 of the Tennessee Rules of Criminal Procedure. After a brief hearing

which included only argument by the attorneys, the trial court denied the motion on

June 5, 1996. A week later, the defendant, once again acting pro se, filed an

application for an extraordinary appeal. 3 This court denied his application on July

24, 1996. In July of 1996, the Hardin County Grand Jury charged Browder with one

count of driving under the influence of an intoxicant and one count of driving while

his license was canceled, suspended or revoked.4



              Only one witness testified at the jury trial held on August 28, 1996.

Officer Jim Davis of the Savannah Police Department testified that in the late

afternoon of June 24, 1995, he was dispatched to the parking lot of a liquor store

for a motorcycle accident and a possible drunk driver. When he arrived he found

the motorcycle upright on its stand in the parking lot. The key was in the ignition,

and the defendant was lying on the pavement partially under the motorcycle.5 In

response to Officer Davis’s question, the defendant said, “I fell off my motorcycle.”

He explained that when he fell, he caught his pant leg on the gear shift lever.

Browder complained that either his foot or his ankle was broken.6 When he was

unable to rise, the officer called for an ambulance. The officer testified that the



3

       The record on appeal does not contain either Browder’s application or this
court’s order denying that application. However, this court may take judicial
notice of court records in an earlier proceeding of the same case. Delbridge v.
State, 742 S.W.2d 266, 267 (Tenn. 1987).
4

       The copy of the indictment contained in the record indicates only that
Browder was indicted during the July, 1996 term. Although the technical record
contains indications that Browder had been twice convicted for DUI prior to this
occurrence, he was indicted for a first offense.
5

       The officer said that the defendant “was partially underneath the
motorcycle between -- like where the front wheel is, you have a down frame here
that holds your engine. His legs were partially under there and he was
attempting to get up.”
6

      Nothing in the record identifies the exact nature of the defendant’s injury.
At one point, defense counsel mentions that the defendant suffered a broken
leg.

                                         3
defendant’s speech was slurred and that he had a tendency to ramble. He smelled

strongly of alcohol. While waiting for the ambulance, Officer Davis checked the

status of Browder’s driver’s license and found that it had been revoked. At trial, the

officer could no longer remember which leg was injured nor could he recall who

towed the motorcycle. He did not remember that he had followed the ambulance

to the hospital although he presumed he had because he knew he requested a

blood test and that one was taken. He did not make any attempt to verify the

ownership of the motorcycle nor did he check to see if the vehicle were operable.

He testified that there was only one helmet “involved” and that he didn’t see anyone

else “there.” The defendant made no statement concerning his activities prior to the

time he fell off the motorcycle. The laboratory technician did not testify, and no

blood tests results were admitted into evidence.          The state presented no

documentary evidence showing that the defendant’s driver’s license had been

revoked or the date on which the revocation occurred. On this evidence, the jury

found the defendant guilty of driving under the influence and driving while his

license was revoked.



              Before considering the sufficiency of the evidence, we address the

issue of whether the convictions were obtained in violation of the defendant’s right

to a speedy trial.

              The United States and Tennessee Constitutions guarantee the

criminally accused the right to a speedy trial. U.S. Const. amends. VI & XIV; Tenn.

Const. art. 1, § 9; State v. Demetrius Dewayne Utley, --- S.W.2d ---, No. 01S091-

9604-CR-00120, slip op. at 4 (Tenn., Nashville, Nov. 17, 1997); State v. Jefferson,

938 S.W.2d 1, 11 (Tenn. Crim. App. 1996). The right to a speedy trial is also

statutory in Tennessee. Tenn. Code Ann. § 40-14-101 (1990). In addition, the

Tennessee Rules of Criminal Procedure provide for the dismissal of an indictment,

presentment, information, or criminal complaint, “[i]f there is unnecessary delay in

presenting the charge to a grand jury against a defendant who has been held to

answer to the trial court, or if there is unnecessary delay in bringing a defendant to



                                          4
trial . . . .” Tenn. R. Crim. P. 48(b).



              Neither the constitutional provisions, the statute nor the rule defines

either the period of time in which the accused must either be brought to trial or the

case dismissed or the precise point at which the clock starts to run. The United

States Supreme Court has held that “no speedy trial rights arise until after formal

accusation, either by arrest or by grand jury action.” United States v. Marion, 404

U.S. 307, 320, 92 S. Ct. 455, 463 (1971). Recently, the Tennessee Supreme Court

decided that the issuance of an arrest warrant, by itself, is not enough to trigger the

protection of the Sixth Amendment right to a speedy trial. Utley, --- S.W.2d ---, slip

op. at 7. Either a formal grand jury action or the actual restraints of an arrest are

required. Id. at 7 (citations to other cases omitted). 7



              When an accused seeks the dismissal of a prosecution based upon

the denial of the constitutional right to a speedy trial, the accused must establish a

period of delay that is “presumptively prejudicial.”8 State v. Jefferson, 938 S.W.2d

1, 12 (Tenn. Crim. App. 1996) (citing Doggett v. United States, 505 U.S. 647, 651,

112 S. Ct. 2686, 2690 (1992)); Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182,

2192 (1972).        The length of the delay is dependent upon the peculiar

circumstances of each case, and the delay that can be tolerated for “an ordinary

street crime” is generally much less than for a serious, complex felony charge.

Barker, 407 U.S. at 530-531, 92 S. Ct. at 2193. A delay of one year or longer marks

the point at which courts deem the delay unreasonable enough to trigger further


7

       Presumably, although that it is not clear in Utley, an arrest alone will not
trigger an accused’s speedy trial rights. As we understand Utley, neither an
arrest nor an arrest warrant is sufficient by itself. An arrest warrant must issue
and the restraints of an arrest must be imposed before the speedy trial clock
begins to tick.
See Utley, --- S.W.2d ---, slip op. at 9 (right triggered when accused was served
with the warrant and arrested).
8

         The term “presumptively prejudicial” does not imply that the defendant is
automatically entitled to relief. It refers rather to delay sufficiently egregious to
require analysis under the balancing test in Barker v. Wingo. Utley, --- S.W.2d --
-, slip op. at 10.

                                           5
inquiry. Utley, --- S.W.2d ---, slip op. at 10; Doggett, 505 U.S. at 652 n.1, 112 S.

Ct. at 2691 n.1; see also State v. Ernest Vickers, III, No. 02C01-9609-CC-00313,

slip op. at 7 (Tenn. Crim. App., Jackson, July 3, 1997), pet. perm. app. filed (Tenn.

Sept. 3, 1997); State v. Terron Bledsoe, No. 02C01-9508-CC-00226, slip op. at 4

(Tenn. Crim. App., Jackson, July 3, 1997), pet. perm. app. filed (Tenn. Sept. 2,

1997).



              If this threshold is crossed, a balancing test determines the merits of

the speedy trial issue. In State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973), our

supreme court recognized and adopted the balancing test set forth in Barker v.

Wingo in which four factors must be balanced. The factors are (1) the length of the

delay, (2) the reasons for the delay, (3) the accused’s assertion of the right to

speedy trial, and (4) the prejudice resulting from the delay. Barker v. Wingo, 407

U.S. 514, 531, 92 S. Ct. 2182, 2192 (1972); Bishop, 493 S.W.2d at 83-84.



              In this instance, Officer Davis arrested the defendant on June 24,

1995, and the issuance of an arrest warrant on June 26, 1995 triggered the

defendant’s right to a speedy trial.     The defendant was tried, convicted and

sentenced on August 28, 1996 after a delay of slightly more than fourteen months.

We find that a fourteen-month delay in a simple DUI case is sufficient to require

further analysis. We must, therefore, weigh the delay in the balance with the other

three Barker factors.



              The state has presented no valid explanation for the delay. The

record indicates that the defendant waived his right to a preliminary hearing when

he appeared in general sessions court on October 20, 1995, and that the case was

bound over to the grand jury. 9 In April, 1996, the defendant filed a pro se motion to

9

       The defendant had filed a motion for speedy trial on September 25, 1995,
approximately one month after his parole was revoked and three months after
his arrest. At the time of his appearance in general sessions court, the
defendant had no attorney representing him. The public defender’s office was
appointed on November 2, 1995.

                                          6
dismiss. The state did not take the case to the grand jury until after the trial court

denied the motion on June 5, 1996. The indictment was issued during the July

term. The state now argues that the defendant is responsible for most of the delay

in bringing the case to trial because he sent the case to the grand jury and because

he filed a Rule 10 appeal to the trial court’s denial of his motion to dismiss. We

disagree.



               Although, it is true that the defendant could have waived the grand jury

requirement, there is nothing in the record to indicate that the defendant knew of the

possibility of waiver or, if he knew, that he understood the ramifications of such a

waiver. The defendant was not represented by counsel until after his first court

appearance. Moreover, the state could have taken the case to the grand jury at

anytime after the initial appearance in sessions court. The facts of the case

required little investigation, and the arresting officer was certainly available to testify.

 The state, however, declined to act until after the trial judge asked the prosecutor

if the case were ready in June of the following year. We cannot say that, on these

facts, any of the delay is chargeable to the defendant merely because the case was

bound over to the grand jury.



               Nor can we see how the defendant’s decision to file a Rule 10 appeal

of the trial court’s denial of the motion to dismiss delayed the trial by even a single

day.10 When the defense filed its petition for an extraordinary appeal on June 13,

10

        In United States v. Loud Hawk, 474 U.S. 303, 106 S. Ct. 648 (1986), the
United States Supreme court found that delays occasioned by appellate review
of interlocutory appeals were subject to the Barker four-part balancing test:

               The Barker test furnishes the flexibility to take
               account of the competing concerns of orderly
               appellate review on the one hand and a speedy trial
               on the other. We therefore adopt this functional test
               to determine the extent to which appellate time
               consumed in review of pretrial motions should weigh
               towards a defendant’s speedy trial claim.

474 U.S. at 315, 106 S. Ct. at 655. However, we need not apply the test in this
instance because our review indicates that the defendant’s extraordinary appeal
resulted in no delay.

                                             7
1996, the state had not yet taken the case to the grand jury. This court denied the

defendant’s application on July 24, 1996. The copy of the indictment in the record

does not disclose the date on which it was issued; however, the caption indicates

that the issuance occurred during the July, 1996 term. Clearly, the trial could not

be held prior to the indictment. Even if the defendant had not filed his application

for appeal, nothing indicates that the trial could have been scheduled sooner than

August 28, 1996.



              The crucial question in determining the legitimacy of delay caused by

government action or inaction is whether the delay was necessary. State v. Kolb,

755 S.W.2d 472, 474 (Tenn. Crim. App. 1988). Nothing in the record indicates that

the delay in this instance was necessary. In fact, at the hearing on the motion to

dismiss, the assistant district attorney candidly told the trial court:

              He [Browder] was brought to General Sessions Court
              after he indicated he wanted to come down and dispose
              of his charge. He bound the matter over to the Grand
              Jury. And I got the impression Mr. Browder was more
              interested in riding up and down the road than he was
              in handling his case. So rather than spending time and
              the deputy’s time taking him back and forth, we just
              chose to wait on him.

(emphasis added).



              In essence, the prosecutor admitted that the government made a

conscious choice to delay. An intentional delay to gain tactical advantage over the

defense or to harass the defendant is clearly improper. Barker v. Wingo, 407 U.S.

514, 532 n.32, 92 S. Ct. 2182, 2193 n. 32 (1972); United States v. Marion, 404 U.S.

307, 325, 92 S. Ct. 455, 466 (1971); State v. Baker, 614 S.W.2d 352, 354 (Tenn.

1981); State v, Terron Bledsoe, No. 02C01-9508-CC-00226, slip op. at 4 (Tenn.

Crim. App., Jackson, July 3, 1997), pet. perm. app. filed (Tenn. Sept. 2, 1997). In

State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), the Tennessee Supreme Court

quoted with approval the concurring opinion of Mr. Justice Brennan in Dickey v.




                                           8
Florida, 398 U.S. 30, 90 S. Ct. 1564 (1970), in which Justice Brennan declared that

“a deliberate attempt by the government to use delay to harm the accused, or

governmental delay that is ‘purposeful or oppressive,’ is unjustifiable. . . .” Bishop,

493 S.W.2d at 84. (quoting from Dickey v. Florida, 398 U.S. at 51, 90 S. Ct. at 1575

(Brennan, J., concurring)). A delay deliberately designed to hamper the defense or

harm the accused should be weighed heavily against the government and in favor

of the defendant. Barker, 407 U.S. at 531, 92 S. Ct. at 2193; State v. Phillip

Branson, No. 03C01-9305-CR-00148, slip op. at 9 (Tenn. Crim. App., Knoxville,

Dec. 9, 1994).



              The third factor, the defendant’s assertion of his right to a speedy trial,

must also be weighed in favor of the defendant. In some instances, the evidence

may show that a defendant did not want a speedy trial, but in this case, the

defendant unequivocally asserted his right within three months of his arrest. When

six months passed without any action, the defendant moved to dismiss the charges.

The fact that this motion was filed by the defendant himself even though the public

defender had been appointed to represent him is further proof that this defendant

was seeking a quick resolution to these charges.



              Although no single factor is determinative in all cases, the most crucial

inquiry is whether the delay has prejudiced the defendant. State v. Wood, 924

S.W.2d 342, 348 (Tenn. 1996) (citations to other cases omitted); State v. Turnbill,

640 S.W.2d 40, 43 (Tenn. Crim. App. 1982). Prejudice to a defendant is not

confined to the possible prejudice to his defense. Moore v. Arizona, 414 U.S. 25,

26, 94 S. Ct. 188, 190 (1973).        Courts should assess prejudice in light of the

interests which the speedy trial right was designed to protect. Barker, 407 U.S. at

533, 92 S. Ct. at 2193. The Barker Court identified three such interests:

              1.     To     prevent      oppressive       pretrial

                     incarceration.

              2.     To minimize anxiety and concern of the



                                           9
                     accused.

              3.     To limit the possibility that the defense will

                     be impaired.

Id. Of the interests that the right to a speedy trial is designed to protect, the most

serious is the last because a defendant’s inability to prepare his case calls into

question the fairness of the entire process. Barker, 407 U.S. at 532, 92 S. Ct. at

2193. Excessive delay compromises the reliability of a trial in ways that neither

party can prove or even identify. Doggett v. United States, 505 U.S. 647, 655, 112

S. Ct. 2686, 2693 (1992); Wood, 924 S.W.2d at 347.



              The defendant, in this case, does not contend that he suffered undue

anxiety or concern or that his ability to mount a defense was impaired. He bases

his claim of prejudice on the first factor and alleges that the pending charges denied

him the opportunity to take part in various rehabilitative programs that would have

otherwise been available to him while he was serving his sentence for arson. Even

though the accused is incarcerated for reasons unrelated to his speedy trial claim,

no court should overlook the possible impact that pending charges might have upon

the prospects for parole and meaningful rehabilitation. Moore v. Arizona, 414 U.S.

at 27, 94 S. Ct. at 190; State v. Wood, 924 S.W.2d 342, 348 (Tenn. 1996). 11 At the

hearing on the motion to dismiss, defense counsel stated that the defendant had

been excluded from various rehabilitative programs because of the pending

charges. The defendant’s brief contains a similar statement. However, arguments

of counsel whether oral or in a brief are not evidence. The defendant did not testify,

and the record contains no information regarding the specific programs in which he

could not participate.



              We recognize that our consideration of prejudice is not necessarily

11

       See also State v. Wallace, 648 S.W.2d 264, 268 (Tenn. Crim. App. 1980)
(delay resulted in prejudice in form of jeopardizing the defendant’s work release
status)(citing State v. Wanda Lou Baker, slip. op. (Tenn. Crim. App., Knoxville,
Nov. 8, 1979); Blackwell v. State, 546 S.W.2d 828, 830 (Tenn. Crim. App. 1976)
(detainer had no effect on appellant’s prison status or privileges).

                                          10
limited to specifically demonstrable evidence. Doggett v. U.S., 505 U.S. 647, 655,

112 S. Ct. 2686, 2692 (1992).          However, even though affirmative proof of

particularized prejudice is not essential to every speedy trial claim, State v. Wood,

924 S.W.2d at 348; State v. Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996);

State v. Kolb, 755 S.W.2d 472, 475 (Tenn. Crim. App. 1988), we find it difficult to

evaluate the degree to which the delay prejudiced the defendant absent some

specific information about the deprivations which he incurred.



                 Of the three interests identified in Barker, the most serious is the

possibility that the defense may be impaired. Barker v. Wingo, 407 U.S. 514, 533,

92 S. Ct. 2182, 2193 (1972). It is also the one most difficult to prove because the

loss of accurate recall and the disappearance of vital documentary evidence may

be impossible to demonstrate. Id. Excessive delay may presumptively compromise

the reliability of a trial in ways that neither party can prove or even identify. Doggett

v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686, 2693 (1992). The greater the

delay,   the more difficult it becomes for a defendant to show particularized

prejudice. Id.



                 However, delay is a double-edged sword. The state bears the burden

of proving its case beyond a reasonable doubt, and the passage of time may make

it difficult or impossible for the government to carry its burden. United States v.

Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 656 (Tenn. 1986).                  Fading

memories and vanished evidence may be as damaging to the state as to the

defendant. In this case, the defendant has not alleged that any defense witnesses

were unavailable or that any exculpatory evidence was lost. The record, however,

amply demonstrates the difficulty that delay creates. The only witness who testified

could not recall many of the pertinent facts. No blood test results were offered. As

we discuss below, the dearth of facts has seriously jeopardized the state’s case.

After carefully reviewing the record, we find that the fourth Barker factor tends to

weigh somewhat in favor of the state.



                                           11
                This case well illustrates the difficulty of balancing the four Barker

factors. No single factor is determinative; rather, the factors are interrelated and

must be considered together with all the relevant circumstances. Barker, 407 U.S.

at 533, 92 S. Ct. at 2193. The delay in this case is directly attributable to the state’s

decision to “just let him [the defendant] wait.” The defendant asserted and pursued

his right to a speedy trial. Both of these factors weigh heavily in the defendant’s

favor. On the other hand, a delay of fourteen months, although certainly sufficient

to trigger the analysis under Barker and Bishop, is not especially egregious, and the

last factor we weigh slightly in favor of the state. We consider this to be a very close

case. Although two factors weigh strongly in the defendant’s favor, the length of the

delay and the absence of proof of prejudice tend to counterbalance these

deficiencies.    Without some proof of the kinds of deprivations the defendant

experienced, we cannot say that the defendant’s right to a speedy trial was violated.

See State v. James H. Masters, No. 03C01-9503-CR-00092, slip op. at 6 (Tenn.

Crim. App., Knoxville, July 19, 1995).



                We now consider whether the evidence in the record is sufficient to

sustain the defendant’s convictions for driving under the influence and driving on a

revoked license.



                The standards for reviewing the sufficiency of the evidence are well-

established. Since a jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, a convicted

defendant has the burden of demonstrating on appeal that the evidence is

insufficient. State v, Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining

that sufficiency, this court does not reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to

the strongest legitimate view of the evidence and all reasonable or legitimate

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,


                                           12
viewed under these standards, was sufficient for any rational trier of fact to have

found the essential elements of the offenses beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 317, 99 2781, 2789; State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e).



              A criminal offense may be established exclusively by circumstantial

evidence.    Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901

S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn.

Crim. App. 1987). However, before an accused 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." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610

(1971); State v. Jones, 901 S.W.2d at 396.     In other words, "[a] web of guilt must

be woven around the defendant from which he cannot escape and from which facts

and circumstances the jury could draw no other reasonable inference save the guilt

of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613; State

v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).



              With these standards in mind, we find that the record contains

sufficient proof to sustain the defendant’s conviction for driving under the influence

of an intoxicant; however, the evidence is insufficient to prove beyond a reasonable

doubt the elements of driving on a revoked license.



              According to Tennessee law,

              It is unlawful for any person or persons to drive or to be
              in physical control of any automobile or other motor
              driven vehicle on any of the public roads and highways
              of the state of Tennessee, or on any streets or alleys, or
              while on the premises of any shopping center, trailer
              park or any apartment house complex, or any other
              premises which is generally frequented by the public at
              large, while under the influence of any intoxicant . . .

Tenn. Code Ann. § 55-10-401(a)(1993). The defendant does not contend that he

was not intoxicated. He argues that the proof fails to establish that he either drove


                                         13
or was in physical control of the motorcycle.



              We agree that there is no evidence in the record to indicate that the

defendant actually drove the vehicle while he was intoxicated. The officer found the

motorcycle on its stand in a public parking lot near a liquor store during the late

afternoon. The keys were in the ignition, and the defendant was lying injured next

to and partially underneath the vehicle. The state argues that one can infer from the

facts that the defendant drove the motorcycle to the parking lot and that he was

intoxicated when he did so. We disagree. Although the defendant told the officer

that “I fell off my motorcycle,” there is no evidence, circumstantial or otherwise, that

indicates how long the motorcycle had been in the parking lot, who drove it there,

or whether the driver was intoxicated when he arrived. Although, the officer testified

that only one helmet was “involved,” and that no one else was “around,” the record

does not indicate that the defendant was wearing or had possession of the helmet

or whether there were people in the liquor store or on the street. This facts in this

case are far different from those in State v. Lawrence, 849 S.W.2d 761 (Tenn.

1993), in which the supreme court noted that the evidence would have been

sufficient for the jury to conclude that the defendant had driven his truck to the place

where it was found. Id. at 766. In Lawrence, the defendant was found asleep in

his truck at night. The vehicle was blocking a narrow gravel road. The defendant

was sitting behind the driver’s seat and the keys were in his pocket. Id. Unlike

Lawrence, any number of reasonable inferences may be drawn from the facts of

this case,12 and the evidence is legally insufficient to support the conclusion that the

defendant drove the motorcycle to the parking lot while he was intoxicated.



              However, actually driving a vehicle is only one way a person may be

convicted of driving under the influence. A person may be convicted of DUI if the

state proves beyond a reasonable doubt that an intoxicated person was in physical

12

      For example, the defendant could have driven the motorcycle to the lot
several hours earlier, purchased liquor at the liquor store, and drank it
somewhere nearby.

                                          14
control of the vehicle. Tenn. Code Ann. § 55-10-401(a) (1993).



              Tennessee uses a totality of the circumstances test to evaluate

whether the accused was in physical control of a vehicle within the meaning of the

statute. State v. Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993). In considering the

extent of an accused’s activity necessary to constitute physical control, the trier of

fact must take into account all of the circumstances, including, for example, 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 operate the vehicle, and the extent to which the vehicle itself is capable of moving

under its own power. Lawrence, 849 S.W.2d at 765.



              In this case, the officer testified that he found the defendant lying on

the ground with one leg partially under the motorcycle. The defendant told the

officer that when he fell off the bike, he caught his pants leg on the gear shift lever

and hurt his leg. The key was in the ignition. The engine was not running, and the

motorcycle was towed away without any attempt to discover whether it would run.13

When the defendant could not get to his feet and complained of a broken bone, the

officer called an ambulance. The only proof of ownership of the vehicle is the

defendant’s own statement that he fell off “his motorcycle.” It is clear that, when the

officer arrived, the injured defendant did not have the present physical ability

regardless of his intoxication to operate the vehicle. State v. Lawrence, 849 S.W.2d

at 765. He could not have driven the motorcycle away because of his injured leg.

However, the key was in the ignition and he apparently had been in the seat before

falling and becoming injured.       It was only his intoxication and bad luck that

prevented him from driving away at that time. We find that the evidence, while not

overwhelming, is sufficient for a rational juror to conclude that, just prior to falling,


13

        The defendant correctly argues that nothing in the record demonstrates
that the motorcycle was in an operable condition. However, the key was in the
ignition and the defendant was seated on a machine he claimed to own. From
those facts, a rational juror could infer that the motorcycle was operable.

                                           15
the defendant was in physical control of the motorcycle while he was under the

influence of an intoxicant.



              As to the defendant’s conviction for driving while his license was

revoked, we find that the evidence does not exclude every other reasonable theory

except that of guilt. See State v. Raymond Carroll, No. 02C01-9308-CR-00179, slip

op. at 5 (Tenn. Crim. App., Jackson, Sept. 27, 1995). Tennessee Code Annotated

section 55-50-504 provides that “[a] person who drives a motor vehicle on any

public highway of this state at a time when the person’s privilege to do so is

canceled, suspended or revoked commits a Class B misdemeanor.” Tenn. Code

Ann. § 55-50-504(a)(1) (emphasis added). The statute requires that the state prove

that the accused drove the vehicle on a public highway. The legislature could have

made provision for driving in any public place or for being in physical control of the

vehicle but chose to limit the crime to those who actually drive on a public road.



              As discussed above, there is no proof, circumstantial or otherwise,

from which a jury could infer that the defendant drove the motorcycle on a public

road. The officer testified that he did not see the defendant actually driving the

motorcycle.    Although the motorcycle obviously was not manufactured in that

parking lot, the sole fact that the defendant said that he fell off his bike in a parking

lot is not sufficient to prove beyond a reasonable doubt that he is guilty of driving

while his license was revoked as defined by section 55-50-504. See Raymond

Carroll, slip op. at 6. The facts and circumstances are not so strong and cogent as

to exclude every other reasonable hypothesis save guilt. State v. Jones, 901

S.W.2d 393, 396 (Tenn. Crim. App. 1995). Therefore, we find that the evidence in

the record is legally insufficient to support a conviction for driving under a revoked

license pursuant to Tennessee Code Annotated section 55-50-504.



              We affirm the defendant’s conviction for driving under the influence

of an intoxicant. His conviction for driving while his license was revoked is reversed



                                           16
and dismissed.



                                      __________________________
                                      CURWOOD W ITT, Judge



______________________________
JOE B. JONES, Presiding Judge



______________________________
JERRY L. SMITH, Judge




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