          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                           OCTOBER 1998 SESSION
                                                    December 21, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9710-CC-00445
      Appellee,                      )
                                     )    HICKMAN COUNTY
VS.                                  )
                                     )    HON. CORNELIA A. CLARK,
DAVID T. JONES,                      )    JUDGE
                                     )
      Appellant.                     )    (DUI, 3rd Offense)



FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN H. HENDERSON                         JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

ELAINE B. BEELER                          TIMOTHY F. BEHAN
Assistant District Public Defender        Assistant Attorney General
407-C Main Street                         Cordell Hull Building, 2nd Floor
P.O. Box 68                               425 Fifth Avenue North
Franklin, TN 37065-0068                   Nashville, TN 37243-0493

                                          JOSEPH D. BAUGH, JR.
                                          District Attorney General

                                          RONALD L. DAVIS
                                          Assistant District Attorney General
                                          Williamson County Courthouse
                                          Suite G-6
                                          P.O. Box 937
                                          Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, David T. Jones, appeals his conviction for driving under

the influence of an intoxicant, third offense. The defendant was sentenced to

eleven (11) months and twenty-nine (29) days and fined $1,500. On appeal, he

raises the following issues for review:


              (1) whether the trial court erred by failing to declare a
              mistrial after a trooper testified the defendant had
              recently been released from jail;

              (2) whether the evidence was sufficient to convict the
              defendant of DUI; and

              (3) whether the trial court correctly sentenced the
              defendant.


The judgment of the trial court is AFFIRMED.



                                       FACTS



       The defendant was discovered in the early evening of November 7, 1995,

trapped in his wrecked vehicle in Hickman County. His vehicle had left the

roadway and struck a tree. The vehicle’s passenger door remained blocked by

the tree. Emergency personnel were forced to cut the driver’s door open in order

to remove the defendant from the wreckage. The vehicle’s engine was still warm

when the paramedics arrived.



       The defendant was uncooperative with the emergency personnel at the

scene. Trooper Kent Montgomery, who arrived at the scene shortly after the

paramedics, testified that the defendant smelled “like he had been drinking an

alcoholic beverage.” Paramedics Brian Qualls and Paul Smith also testified that

they smelled alcohol on the defendant. Smith stated the defendant’s speech

was slurred and that he was “thick-tongued.” Both Qualls and Smith described

the defendant as appearing “intoxicated.” Trooper Montgomery testified the



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defendant was “extremely intoxicated.”



       When the trooper attempted to administer the horizontal gaze nystagmus

field sobriety test, the defendant closed his eyes. The defendant later refused

medical treatment as well as a chemical analysis of his blood alcohol content.



       The defense offered no proof at trial.



                                     MISTRIAL



       During Trooper Montgomery’s testimony, he related that when he asked

for the defendant’s driver’s license, the defendant responded that he did not

have one because he “had just got out of jail.” Defense counsel immediately

moved for a mistrial. The trial court denied the mistrial and gave the jury the

following curative instruction:


              Ladies and gentlemen, the last question and answer
              are being stricken and I want to instruct you to
              disregard it and to assume that you never heard it. In
              a case like this an individual is permitted, with some
              restrictions, to testify about what a defendant may
              have said, but it’s not actually being introduced for the
              truth. At this point neither the trooper nor any of us
              have any way of knowing if the statements made
              were even the truth. The fact that somebody may
              have recently come from a jail somewhere doesn’t
              have anything to do with anything, because there is
              no proof in the record as to what that may have
              meant, whether somebody was visiting or anything,
              and that does not in any way suggest, even if true, or
              doesn’t have any relevance to this case, and at this
              point in this case we don’t even know whether those
              statements, if made, were true. So you must
              disregard those, consider as though you had never
              heard them.


       The determination of whether to grant a mistrial rests within the sound

discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994).

The reviewing court should not overturn that decision absent an abuse of

discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The



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burden of establishing the necessity for mistrial lies with the party seeking it.

State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this

determination, no abstract formula should be mechanically applied, and all

circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,

322 (Tenn. 1993).



       The trooper’s comment was wholly unsolicited by the state. The trial court

immediately instructed the jury at length as to why they were not permitted to

consider it in their deliberations. The jury is presumed to have followed the trial

court’s curative instructions, absent evidence to the contrary. State v. Smith, 893

S.W.2d 908, 914 (Tenn. 1994); State v. Williams, 929 S.W.2d 385, 388 (Tenn.

Crim. App. 1996). In view of these matters as well as the overwhelming

evidence of guilt, we conclude the defendant was not unduly prejudiced by the

trooper’s remark.



       This issue is without merit.



                        SUFFICIENCY OF THE EVIDENCE



       The defendant contends the state did not sufficiently prove that he was

under the influence of an intoxicant and in physical control of the vehicle. He

alleges the evidence of intoxication consisted solely of witnesses testifying to

what they smelled, and the only evidence that he was in physical control of the

vehicle was circumstantial.



       When an accused challenges the sufficiency of the convicting evidence,

our standard of review is whether, after reviewing the evidence in a 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Questions



                                          4
concerning the credibility of the witnesses, the weight and value to be given the

evidence as well as all factual issues raised by the evidence, are resolved by the

trier of fact, not this Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim.

App. 1995). Nor may this Court reweigh or re-evaluate 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 inferences therefrom. Id.

Because a verdict of guilt removes the presumption of innocence and replaces it

with a presumption of guilt, the accused has the burden in this Court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



       As to the defendant’s intoxication, three (3) witnesses testified that the

defendant smelled of alcohol and had slurred speech. Each testified he

appeared intoxicated. Further, he refused to submit to field sobriety and blood

alcohol tests. The defendant also refused medical treatment when he learned

the hospital staff would use any blood sample taken, in part, to determine blood

alcohol content. Viewed in a light most favorable to the state, there was

sufficient evidence to find the defendant was under the influence of an intoxicant.



       Regarding “physical control” of the vehicle, the Tennessee Supreme Court

has previously analyzed cases in which a defendant is discovered in a situation

similar to the defendant in the instant case. See State v. Lawrence, 849 S.W.2d

761, 763 (Tenn. 1993). The Court initially noted that circumstantial evidence can

be sufficient to sustain a DUI conviction. Id. The Court further held that a totality

of the circumstances approach should be utilized in determining whether the

defendant was in “physical control” of the vehicle for the purposes of Tenn. Code

Ann. § 55-10-401(a).



       Following this approach, there is sufficient evidence that the defendant

was in “physical control” of the vehicle as contemplated by Tenn. Code Ann. §



                                          5
55-10-401(a). The defendant’s suggestion that another person could have been

driving the vehicle and disappeared after the wreck is not compelling. The

testimony at trial revealed the defendant’s feet and legs were pinned beneath the

steering wheel. It defies logic to suggest that another person actually drove the

vehicle, survived the crash uninjured, and then escaped through the shattered

rear window leaving the defendant with his legs pinned under the steering wheel.

The jury was at liberty to reject such a scenario.



       This issue is without merit.



                                   SENTENCING



       The defendant contends in his final issue that the trial court erred in

imposing a sentence of eleven (11) months and twenty-nine (29) days

incarceration rather than the statutory minimum time in jail, 120 days. He alleges

the trial court gave undue weight to the fact that he pled guilty to DUI, second

offense, only four (4) days prior to his arrest for this, his third DUI offense. The

defendant further alleges the trial court used inapplicable enhancement factors in

arriving at the maximum sentence.



       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997). The burden is upon the appealing party to show that the sentence



is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission



                                          6
Comments.



       The defendant is correct in his assertion that the trial court placed great

emphasis on the fact that the instant offense was committed only four (4) days

after he pled guilty to the identical crime. It found this repeat behavior showed

an unwillingness to comply with conditions of a sentence involving release into

the community. Tenn. Code Ann. § 40-35-114(8). However, the application of

this enhancement factor requires a “previous history” of unwillingness to comply

with sentences involving release into the community. Id. Thus, this

enhancement factor was improperly applied. See State v. Hayes, 899 S.W.2d

175, 186 (Tenn. Crim. App. 1995).



       The trial court also applied enhancement factors (10) and (16); namely,

the defendant had no hesitation about committing a crime when the risk to

human life was high, and the crime was committed under circumstances under

which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-

35-114(10), (16). These factors were erroneously applied as the record does not

establish that other persons were actually threatened by the defendant’s

conduct. See State v. Rhodes, 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995).

However, the trial court stated it gave little weight to these factors.



       We, nevertheless, agree with the trial court’s assessment of the

defendant’s amenability to rehabilitation. Although committing the present

offense only four (4) days after another DUI conviction does not give rise to

enhancement factor (8) as discussed above, the trial court correctly noted this

establishes that measures less restrictive than confinement had recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1)(C).

The trial court properly gave this sentencing principle great weight.



       Tenn. Code Ann. 55-10-403(c) mandates a sentence of eleven (11)



                                           7
months and twenty-nine (29) days for DUI with the only function of the trial court

being to determine what period above the minimum period of incarceration

established by statute, if any, is to be suspended. State v. Combs, 945 S.W.2d

770, 774 (Tenn. Crim. App. 1996). Thus, the issue before this Court is whether

the trial court erred in imposing the maximum sentence of actual confinement.



      We decline to reduce the sentence. The erroneous application of

enhancement factors does not necessarily require a reduction of the sentence.

See State v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998). This is the

defendant’s third conviction for DUI. It was committed only four days after he

pled guilty to DUI, second offense. The defendant appears to be a danger to

others as well as himself and has failed to show that the sentence was improper.



      Accordingly, the judgment of the trial court is AFFIRMED.




                                                _________________________
                                                JOE G. RILEY, JUDGE



CONCUR:




_________________________
PAUL G. SUMMERS, JUDGE




_________________________
JOSEPH M. TIPTON, JUDGE




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