        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      SEPTEMBE R SESSION, 1998              FILED
                                                        December 11, 1998
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9709-CR-00344
                            )                        Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,             )
                            )
                            )   SHELBY COUNTY
VS.                         )
                            )   HON. JOSEPH DAILEY
JOHNNY LAWRENCE,            )   JUDGE
                            )
      Appe llant.           )   (DUI—Second, Reckless Driving)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

A.C. WHARTON                    JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

WA LKER GW INN                  GEORGIA BLYTHE FELNER
Assistant Public Defender       Assistant Attorney General
201 Poplar Avenue               425 Fifth Avenu e North
Memphis, TN 38103               Nashville, TN 37243

                                WILLIAM GIBBONS
                                District Attorney General

                                DAVID C. HENRY
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Johnny Lawrence, pursuant to Tennessee Rule of

Appe llate Procedure 3(b), appeals as of right his convictions for driving under the

influence of an intoxicant—second offense and reckless driving. The sole issue

for review by this Court is whether his conviction on both charge s unde r the facts

of this case violates Defendant’s right against double jeopardy as provided by the

Tennessee Constitution. We conclude that it does not, and we affirm the verdict

of the jury as approve d by the trial c ourt.



       According to the proof at trial, Defendant was stopped in his vehicle at

appro ximate ly 7:00 a.m. on October 8, 1995 by Officer Williams of the Mem phis

Police Depa rtment. O fficer Williams testified at trial that he noticed Defendant

drive both right tires of his car over a curb as he exited the parking lot of a bank

and entered a Memphis street. Williams followed Defendant for a short distance

and observed the car “weaving across lanes of traffic.” When the officer stopped

Defen dant an d aske d him to step out of the car, Defendant staggered, smelled

of alcoho l, and had slurred sp eech.



       Officer Williams determined that, based upon his experience, Defendant

had been driving in an impaired state due to alcohol consumption; and the officer

drove Defendant to the location of DUI Officer E.W . W hite to u nderg o field

sobriety testing. One of the officers informed Defendant of his rights and of the

implied consent law; Defendant then refused to submit to an alcohol content test.

Officer Wh ite video taped the field sobrie ty tests a dmin istered —h eel-to- toe wa lk



                                          -2-
and index finger-to-nose—which Defendant failed. According to the DUI Field

Sobriety Report entered into evidence, Officer White also observed that

Defe ndan t’s eyes appeared bloodshot and sleepy and that the odor of alcohol

was strong. In th e report, Wh ite con curred in Office r W illiams’s conclusion that

the effects of alcoho l upon Defe ndant were “extreme.”



       This case is governed by the do uble je opard y analy sis announced by the

supreme court in State v. Denton, 938 S.W.2d 373 (Tenn . 1996). Curiously, the

State neither cites this controlling opinion nor addresses its test, relying instead

only upon an examination of this issue in terms of the “same elements” te st of

Blockburger v. United States, 284 U.S. 299 (19 32). 1 The Blockburger test is on ly

a part of what we must consider for a double jeopardy challenge under the

Tenn essee Constitu tion.



       In Denton, the su prem e cou rt exam ined d ouble jeopa rdy prin ciples in this

state and clarified how Ar ticle I, section 1 0 of the T ennes see Co nstitution

provides greate r protection for the criminal defendant against double jeopardy

than does the federal constitution. That clarification emerged as a four-pa rt test:

       [R]esolution of a double jeopardy punishment issue under the
       Tennessee Constitution requ ires the following: (1) a Blockburger
       analys is of the statutory offenses; (2) an analysis, guided by the
       principles of Duchac, of the evide nce us ed to prove the offenses; (3)
       a consideration of wh ether the re were m ultiple victims or discrete
       acts; and (4) a comparison of the purpose s of the respec tive
       statutes. None of these steps is determinative; rather the results of
       each m ust be weigh ed and co nsidered in relation to each other.

Denton, 938 S.W.2d at 381 (discussing Blockburger v. United States, 284 U.S.

299 (1932), and Duch ac v. State , 505 S.W .2d 237 (Tenn . 1973)); see State v.

       1
         Though, curiously again, the State does not cite to Blockburger as support for the
“same elements” test.

                                           -3-
Winningham, 958 S.W.2d 740, 743 (Tenn. 1997); State v. Hall, 947 S.W.2d 181,

183 (Ten n. Crim. App . 1997).



       Applying that test to this case, we conclude that the factors weigh in favor

of affirming Defendant’s convictions for DUI and reckless driving as not violative

of our double jeopardy protections under the state constitution. First, under the

federal double jeopard y principles of Blockburger, the offenses are not the same

and deserve no Fifth A mend ment p rotection. See Blockburger, 284 U.S. at 304.

The Supreme Court stated in Blockburger that “the test to b e app lied to

determine whether there are two offenses or only one is whether each provision

requires proo f of an additional fact wh ich the other doe s not.” Id.



       In 1995 the offense of DUI required (a) any person or persons to drive or

be in physical control of a vehicle; (b) on any public road, highway, stree t, or

alley, or on the premises of any shopping center, trailer park, apartm ent comp lex,

or other place generally frequented by the public at large; (c) while under the

influence of any intoxicant, marijuana, narcotic drug, or drug producing

stimulating effects on the central nervous system. Tenn. Code Ann. § 55-10-401.

The offense of reckless driving required (a) any pe rson to drive any vehicle, (b)

in willful or wanton disregard for the safety of person s or prop erty. Id. § 55-10-

205. DUI, then, lacks the element of willful an d wan ton dis regar d for sa fety, wh ile

reckless driving lacks the element of being un der the influ ence o f an intoxica nt.

In additio n, this C ourt ha s previo usly he ld that reckless driving is not a lesser

included offense o f DUI. Fournie r v. State, 945 S.W.2d 766, 769 (Tenn. Crim.

App. 1996) (citing Ray v. Sta te, 563 S.W.2d 218, 219 (T enn. Crim. A pp. 1977));

cf. State v. Boggs, 865 S.W.2d 920, 921-22 (Tenn. Crim. App. 1992) (holding that

                                          -4-
reckless endan germe nt, in vehicular context, is not a lesser included offense of

DUI). These offenses fail to meet the Blockburger test to qualify as the “same

offense” for double jeopardy purposes.



       Next, we an alyze w hethe r, unde r the prin ciples of Duchac v. Sta te, 505

S.W.2d 237 (T enn. 19 73), the sa me evid ence w as use d to convict Defendant of

both DUI and reckless driving. “If the same evidence is not required [to prove

each offense], then the fact that both charges relate to, and grow out of, one

transac tion, does not make a single offense where two are defined by the

statutes.” Id. at 239. Furthermore, “[t]here is no identity of offenses if on the trial

of one offense proof of some fact is required that is not necessary to be proved

in the trial of the other, although some of the same acts may necessarily be

proved in the trial of each .” Id.



       Here, the evidence n ecessary to convict Defendant of reckless driving was

the testimony by Officer Williams that Defendant drove over a cu rb in his attempt

to access the public street and that he weaved across lanes of traffic while other

vehicles shared the road way. In contrast, proof that Defendant operated or was

able to ope rate his vehicle ; that he sme lled strongly of alcohol; that he had

bloodshot eyes and a slow, confused response; that he fa iled his field so briety

tests; and that he sta ggered and sw ayed wa s sufficient to convict Defendant of

DUI.   We find the necessary burdens of evidentiary proof for each offense

sufficie ntly separate to constitute dissimilar offenses under the Duchac “same

evidence” test. See, e.g., State v. Daniel Long, No. 02C0 1-9610-CC-00362,

1998 WL 74253, at *13 (Tenn. Crim. App., Jackson, Feb. 24, 1998) (concluding

that “same evidenc e” test wa s not m et in rape/sexu al battery case in which

                                         -5-
defendant both digita lly penetrate d victim, fondled victim’s breasts, and forced

victim to masturbate him with her hand during same period o f time); cf. State v.

W illie B. Jackson, No. 01C01-9702-CR-00054, 1998 WL 199992, at *10 (Tenn.

Crim. App., Nashville, Apr. 23, 1998) (concluding that “same evidence” test was

met in sale/delivery of cocaine case in which defendant sold cocaine but another

actua lly delivered it; therefore trial court must have relied upon eviden ce of s ale

to convict defendant of delivery charge). Application of this factor weighs in favor

of not bar ring a con viction for bo th offense s.



       Third, we consider whether the proof showed “multiple vic tims or dis crete

acts.” See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). In this case, the

victims of both offenses were the State as the sovereign and the community at

large. State v. Winningham, 958 S.W .2d 740 , 746 (T enn. 19 97). Moreover, for

the purpo se of th is case , we find only one physical act—driving a vehicle from the

bank parking lot down the street. The additional evidence which constituted DUI

was Defendant’s state of impairment, not another “discrete act.” Therefore,

application of this factor tends to demonstrate that double jeopardy should bar

conviction for both offenses.



       Our last point of analysis is a comparison of the purposes of both statutes.

In his well-written brief, Defend ant correctly argues that both DUI and reckless

driving “are part of the sam e code title and cha pter and both are designe d to

deter an d punish driving in su ch a wa y as to en dange r others.”



       In State v. George Blake Kelly, No. 01C01-9610-CC-0048, 1998 WL

712268 (Tenn. Crim . App., Nash ville, Oct. 13, 1998), a pa nel of this Court

                                           -6-
concluded for double jeopa rdy analysis that vehicu lar assault and DUI ha ve

similar purpos es, stating that the “aim of the DUI statute is to ‘remove from the

highways, prosecute and punish those who engage in the dangerous menace of

driving under th e influenc e.’” Id. at *10. We find that the purpose of reckless

driving is very sim ilar, just a s we fo und re gardin g vehic ular as sault in Kelly. See

id.



       Howeve r, we believe that, if surveyed broadly enou gh, nearly any two

criminal offenses can be considered of singular purpose. With respect to the

offenses of DUI and reckless driving, we do not find that the purposes are so

analogous as to cause the Denton scale to shift tow ard dis miss ing De fenda nt’s

conviction for reck less dr iving. Alto gethe r, we co nclud e that a pplication of the

four factors weighs more heavily toward permitting prosecution and conviction for

both offenses as constitutionally appropriate under the Tennessee Constitution.



       W e affirm D efend ant’s c onvictions for driving under the influence of an

intoxicant— secon d offense and rec kless drivin g.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE

                                           -7-
___________________________________
JOE G. RILEY, JUDGE




                              -8-
