        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                January 28, 2014 Session

                STATE OF TENNESSEE v. DANIEL A. ROGERS

                   Appeal from the Criminal Court for Knox County
                        No. 91150    Steven W. Sword, Judge


                  No. E2013-01356-CCA-R3-CD - Filed April 2, 2014


Daniel A. Rogers (“the Defendant”) was convicted by a jury of driving under the influence,
simple possession of a Schedule IV controlled substance, and driving on a suspended driver’s
license. The Defendant also was convicted by the trial court of violating the implied consent
law, resulting in the suspension of his driver’s license for one year. Following a sentencing
hearing on his remaining convictions, the Defendant received a total effective sentence of
eleven months and twenty-nine days suspended to supervised probation after the service of
sixty days. In this direct appeal, the Defendant contends that he was denied a fair trial when
the trial court declined to provide a jury instruction regarding the State’s duty to preserve
evidence, and he challenges the sufficiency of the evidence supporting his convictions. After
a thorough review of the record and applicable law, we affirm the judgments of the trial
court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Daniel A. Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Randall Nichols, District Attorney General; and Kenneth F. Irvine, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                          Factual and Procedural Background

       A Knox County Grand Jury indicted the Defendant on three alternate counts for
driving under the influence, and one count each for simple possession of a Schedule IV
controlled substance, violation of the implied consent law, and driving on a suspended
driver’s license. See Tenn. Code Ann. §§ 55-10-401, -406 (2008); 39-17-418 (2006); 55-50-
504 (2008). The Defendant proceeded to a jury trial on February 27, 2013.

       Tim Edwards, an officer with the Knoxville Police Department (“KPD”), testified that
he was working as a patrol officer on the date of the incident in question. Around 3:00 p.m.
on that day, he responded to a call that “two individuals, a man and a woman, [were] passed
out on the ground next to a white Ford F-150” in the parking lot of the Knights Inn hotel in
Knoxville. When he arrived at the parking lot, Officer Edwards saw a white F-150 “parked
in the middle of the parking lot,” with both the passenger’s and driver’s side doors open.
Officer Edwards testified that he saw the Defendant “laying there face down” with his
“[f]ace against the pavement” just outside the open driver’s side door. When Officer
Edwards blew his air horn, the Defendant was startled awake, hitting his head on the driver’s
side door. Officer Edwards testified that, when the Defendant stood up, he was “staggering
around.”

        Officer Edwards searched the Defendant and discovered that the Defendant had in his
pocket a silver “container with a screw-off top, which is consistent with people that normally
carry pills,” inside of which Officer Edwards found twelve blue pills. Officer Edwards
clarified that the container was not a prescription bottle. When Officer Edwards asked the
Defendant what the pills were, the Defendant responded that the pills were a “kind of nerve
pill” and admitted that the pills were Alprazolam, also known as Xanax. At that time, Officer
Edwards read the Defendant his Miranda rights. The Defendant admitted that he had taken
two of the pills that day. Officer Edwards also testified that, looking inside the Defendant’s
truck, he noticed that the keys were in the ignition. Officer Edwards confirmed that the video
camera on his police vehicle captured the incident, and the video was played for the jury.

       Officer Edwards placed the Defendant in the back of his police vehicle, but the
Defendant “kept falling asleep,” and Officer Edwards continually had to wake him. Officer
Edwards stated that the Defendant “couldn’t tell me what was going on.” Officer Edwards
also noted that the Defendant’s “speech was slurred while he was talking, was mumbling,
[his] eyes were red and watery.” Based on his observations of the Defendant, Officer
Edwards concluded that the Defendant was “extremely impaired” and “unfit to drive.”
During his interactions with the Defendant, Officer Edwards began to feel that the

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Defendant’s physical condition and health were “becoming a concern.” Officer Edwards
testified that he normally would give a field sobriety test in such a situation; however,
according to Officer Edwards, “due [to the Defendant] not being able to stay awake, [Officer
Edwards] felt that it would be more of a danger to try to get him out to do one.” At that
point, Officer Edwards transported the Defendant to the hospital.

       At the hospital, Officer Edwards questioned the Defendant further. The Defendant
again admitted to having taken two Xanax pills prior to encountering Officer Edwards. The
Defendant claimed he had obtained the pills “from a friend” and admitted that he was not
under a doctor’s care at the time. The Defendant told Officer Edwards that he had come to
the Knights Inn from “the barbershop.” Officer Edwards testified that, based on his
experience patrolling the area, in order to drive to the Knights Inn, the Defendant would had
to have driven on public roadways. Officer Edwards read the implied consent form to the
Defendant, and the Defendant refused to submit to a blood sample.

       Officer Edwards also testified that the Defendant was not able to provide a driver’s
license. When Officer Edwards ran the Defendant’s driver’s license information, he
discovered that the Defendant’s license was suspended at the time of the incident in question.
The Defendant’s driving record was entered into evidence which confirmed that his license
was suspended at the time of the incident in question.

        On cross-examination, Officer Edwards agreed that, although the Defendant stated
that he had come to the Knights Inn from a barbershop, the Defendant never gave a time
frame as to how recently he had been at the barbershop. Officer Edwards testified that, when
he initially encountered the Defendant, he asked the Defendant for identification and that the
Defendant had none. He clarified that, although the keys were in the ignition, he could not
recall whether the truck was still running at the time he pulled up. Officer Edwards
confirmed that he never saw the Defendant driving the truck.

        Regarding the Xanax pills he collected from the Defendant, Officer Edwards
testified, “Due to the length of time between the time it was confiscated and today’s trial,
we have since burned them. We don’t keep them on a misdemeanor charge for more than
four years.”

       At the conclusion of the State’s proof, the defense moved for a judgment of acquittal,
and the trial court denied the motion. The Defendant chose not to testify on his own behalf
and submitted no proof.

       Prior to deliberation, the defense moved to include an instruction on the State’s duty
to preserve evidence, and the trial court denied the motion. See 7 Tenn. Prac. Pattern Jury

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Instr. T.P.I-Crim 42.23. The jury deliberated and found the Defendant guilty as charged.
The trial court then found the Defendant guilty of violating the implied consent law and
suspended the Defendant’s driving privileges for one year. Following a sentencing hearing,
the trial court merged the three driving under the influence convictions into one count and
sentenced the Defendant to eleven months and twenty-nine days suspended to supervised
probation after service of sixty days on both the driving under the influence and the simple
possession convictions. The trial court also sentenced the Defendant to six months with four
months suspended on the driving on a suspended license conviction. The trial court ordered
all three sentences to run concurrently. The Defendant filed an untimely motion for new
trial, which the trial court heard and denied. In this direct appeal, the Defendant contends
that he was denied a fair trial when the trial court declined to provide a jury instruction
regarding the State’s duty to preserve evidence and challenges the sufficiency of the evidence
supporting his convictions.

                                           Analysis

                                   Destruction of Evidence

        The Defendant argues that the State violated its duty to preserve evidence when it
destroyed the Xanax pills and that the trial court erred in denying his motion to include a jury
instruction on the State’s duty to preserve evidence. However, the State correctly notes that
the Defendant’s motion for new trial was untimely filed. Under Tennessee Rule of Criminal
Procedure 33(b) “[a] motion for a new trial shall be in writing or, if made orally in open court
be reduced to writing, within thirty days of the date the order of sentence is entered.”
Accordingly, “[a] trial judge does not have jurisdiction to hear and determine the merits of
a motion for new trial that has not been timely filed.” State v. Martin, 940 S.W.2d 567, 569
(Tenn. 1997). Therefore, a trial court’s erroneous consideration of an untimely motion for
new trial “does not validate the motion, and an appellate court will not consider the issues
raised in the motion unless the issue or issues would result in the dismissal of the prosecution
against the accused.” State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989).
Therefore, “[i]f a motion for new trial is not timely filed, all issues are deemed waived except
for sufficiency of evidence and sentencing.” State v. Bough, 152 S.W.3d 453, 460 (Tenn.
2004) (citing Tenn. R. App. P. 3(e); Martin, 940 S.W.2d at 569). In the instant case, the
Defendant’s judgments were stamped filed on April 18, 2013, and the Defendant’s motion
was filed on June 3, 2013, outside the thirty-day period. Accordingly, the Defendant failed
to timely file his motion for new trial. Consequently, this issue is waived.

      When an issue is waived on appeal, however, this Court nevertheless may grant relief
on a determination that plain error was committed. See Tenn. R. App. P. 36(b); State v.



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Adkisson, 899 S.W.2d 626, 636-38 (Tenn. Crim. App. 1994). We will grant relief for plain
error only when five prerequisites are satisfied:

       (1) the record clearly established what occurred in the trial court, (2) a clear
       and unequivocal rule of law was breached, (3) a substantial right of the
       accused was adversely affected, (4) the accused did not waive the issue for
       tactical reasons, and (5) consideration of the error is necessary to do substantial
       justice.

State v. Banks, 271 S.W.3d 90, 119-20 (Tenn. 2008); see also Adkisson, 899 S.W.2d at 641-
42. The Defendant bears the burden of demonstrating plain error, and this Court need not
consider all five factors “when it is clear from the record that at least one of them cannot be
satisfied.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007). The Defendant has failed
to demonstrate plain error in this case.

                                 Sufficiency of the Evidence

        Our standard of review regarding sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does
not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts” in the testimony and
all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence and
all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation
omitted). This standard of review applies to guilty verdicts based upon direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted
the United States Supreme Court standard that “direct and circumstantial evidence should be
treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,
the evidence need not exclude every other reasonable hypothesis except that of the
defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.
Id.




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       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

      The Defendant challenges the sufficiency of the State’s evidence supporting his
convictions. The Defendant’s sole argument in support of this claim is that “there was no
evidence showing that [the Defendant] was in control of the vehicle, that the vehicle was
operable, or that [the Defendant] had driven the vehicle.”

       Under Tennessee Code Annotated section 55-10-401 (2008),

              It is unlawful for any person 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, any shopping center, trailer park, apartment house
       complex, or any other location which is generally frequented by the public at
       large, while:

              (1) Under the influence of any intoxicant, marijuana, controlled
       substance, controlled substance analogue, drug, substance affecting the central
       nervous system or combination thereof that impairs the driver’s ability to
       safely operate a motor vehicle by depriving the driver of the clearness of mind
       and control of himself which he would otherwise possess.

        “[I]t has long been the law in this state that a driving under the influence conviction
based upon physical control does not hinge on whether the vehicle’s engine is running or
whether the vehicle is in motion.” State v. Butler, 108 S.W.3d 845, 851 (Tenn. 2003) (citing
Hester v. State, 270 S.W.2d 321, 322 (Tenn. 1954); State v. Ford, 725 S.W.2d 689, 690-91
(Tenn. Crim. App. 1986)). In fact, our supreme court has held that courts must follow “the
totality of the circumstances approach in assessing the accused’s physical control of an
automobile.” State v. Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993). In Lawrence, our
supreme court found that the defendant “was in physical control of his automobile within the
meaning of [section] 55-10-401(a),” when an officer found him asleep in his parked truck
even though the engine was off and the keys were in the defendant’s pocket. See id. at 762-
65. In affirming the defendant’s conviction in Lawrence, our supreme court articulated
relevant factors that the trier of fact should take into account when considering whether an
accused was in physical control of his vehicle:




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

Id. at 765.

        In the instant case, Officer Edwards testified that the Defendant was sleeping directly
outside the driver’s side door of his truck with the door open. In fact, Officer Edwards
testified that the Defendant was so close to the open driver’s door that he bumped his head
on it when he was startled awake by Officer Edward’s horn. Officer Edwards also recounted
that, although the truck was shut off, the keys were in the ignition. Furthermore, the
Defendant’s own admission to Officer Edwards that he had driven to the Knights Inn from
a barbershop was evidence to show that the vehicle was in operable condition and that the
Defendant was capable of directing the operation of the vehicle. Furthermore, Officer
Edwards testified that the Defendant was “staggering around,” had trouble staying awake,
had slurred speech, was “mumbling,” and had “red and watery” eyes. According to Officer
Edwards, the Defendant was “extremely impaired” and “unfit to drive.” This evidence was
sufficient to lead a reasonable trier of fact to conclude that the Defendant was in physical
control of his vehicle and was under the influence of an intoxicant such that his ability to
operate his vehicle was impaired. Therefore, we hold that there was sufficient evidence to
support the Defendant’s conviction for driving under the influence.

         Pursuant to Tennessee Code Annotated section 55-50-504, a person who drives a
vehicle “at a time when the person’s privilege to do so is cancelled, suspended, or revoked
commits a Class B misdemeanor.” On multiple occasions, this Court has held that
circumstantial evidence that a defendant had recently driven a vehicle is sufficient to support
a conviction for driving on a cancelled, suspended, or revoked driver’s license, even where
the defendant never was seen driving the vehicle. In State v. Roger Dale Bryan, No. M2003-
01366-CCA-R3-CD, 2004 WL 1533828, at *4 (Tenn. Crim. App. July 7, 2004), perm. app.
denied (Tenn. Dec. 6, 2004), this Court held that the evidence was sufficient to support the
defendant’s conviction for driving on a revoked license when an officer encountered the
defendant “bent over the hood” of his parked truck, even though the officer never witnessed
the defendant driving the truck. There, the court reasoned that “[i]n the absence of any
credible proof that this driving might have been done by someone else, it was reasonable for
the jury to infer that it was done by the [defendant].” Id.; see also State v. Robert G. Barham,
No. W2011-02348-CCA-R3-CD, 2012 WL 4057246, at *6 (Tenn. Crim. App. Sep. 17, 2012)
(holding that the evidence was sufficient to convict the defendant for driving on a revoked
license where the defendant was seen fleeing his vehicle after an accident, but was never

                                              -7-
observed driving); State v. Richard Ferrell, No. M2009-01175-CCA-R3-CD, 2010 WL
27886, at *3 (Tenn. Crim. App. Jan. 7, 2010), perm. app. denied (Tenn. May 20, 2010)
(holding that the evidence was sufficient to convict the defendant for driving on a suspended
license where the officer responded to the scene of an accident and the defendant admitted
that he had been driving one of the vehicles involved).

         In the instant case, the Defendant was found directly outside the driver’s side door
of his vehicle with the door open and the keys in the ignition. He told Officer Edwards that
he had driven to the Knights Inn from a barbershop. Officer Edwards ran the Defendant’s
information and discovered that the Defendant’s driver’s license was suspended at the time
of the incident. The Defendant’s driving record also was entered into evidence, confirming
that the Defendant’s license was suspended at the time of the incident. This evidence was
sufficient to lead a rational trier of fact to conclude that the Defendant had driven his vehicle
while his driver’s license was suspended.

        Although in his brief the Defendant objects to the sufficiency of the evidence
generally, he cites us to no authority and offers no argument challenging the sufficiency of
the evidence supporting his conviction for simple possession. That claim is therefore
waived. See Tenn. R. Crim. App. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”).


                                       CONCLUSION

       For the reasons set forth above, we affirm the judgments of the trial court.




                                                     ______________________________
                                                     JEFFREY S. BIVINS, JUDGE




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