        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 10, 2012

               STATE OF TENNESSEE v. MICHAEL GOODING

              Direct Appeal from the Criminal Court for Shelby County
                      No. 09-04774    John Fowlkes, Jr., Judge




                 No. W2011-00970-CCA-R3-CD - Filed July 25, 2012


After a jury trial, Defendant Michael Gooding was convicted of third offense driving under
the influence of an intoxicant (DUI). The trial court sentenced him to serve 160 days in the
county workhouse. Defendant’s sole issue on appeal is a challenge to the sufficiency of the
evidence to sustain the conviction of DUI. We affirm the conviction of DUI, third offense,
but remand for entry of a corrected judgment setting forth the correct sentence of 11 months
and 29 days, with all but 160 days suspended for DUI, third offense, and for designation that
counts 1, 2, and 4 are merged with count 3.

Tenn. R. App. P. 3 Appeal as of Right; Conviction of the Criminal Court Affirmed;
                   Remanded for Entry of Corrected Judgment

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Michael Gooding.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Susan Taylor, Assistant District
Attorney General; and Edith Sellerd, Assistant District Attorney General; for the appellee,
the State of Tennessee.

                                        OPINION

I. Background

       Shelby County Deputy Sheriff Jennifer Peterson testified that she was on patrol when
she encountered Defendant at approximately 1:00 a.m. on February 25, 2009. Defendant’s
car was sitting still in a driveway leading directly from Holmes Road to the parking area for
New Sardis Baptist Church. Defendant’s vehicle was on the outside of a locked gate situated
across the driveway. The gate crossed the driveway approximately two car lengths from the
edge of Holmes Road. The only way to drive any vehicle to the location where Defendant’s
vehicle was found was to drive on Holmes Road, a public highway in Shelby County. The
tail-lights on Defendant’s vehicle were on, the engine was running, the automatic
transmission was in “drive,” and the defendant was slumped over asleep. Deputy Peterson
knocked on the window to try to wake up Defendant. He looked up at Deputy Peterson and
then went back to sleep. Deputy Peterson repeated her efforts to awaken Defendant two
more times before she was successful.

       At the deputy’s command, Defendant placed the transmission in “park.” Defendant
had difficulty removing from his wallet his driver’s license in order to hand it to Deputy
Peterson. She observed that Defendant had blurry, bloodshot, and watery eyes, his speech
was slurred, and there was a strong odor of intoxicant on him. The deputy called for the
sheriff’s department’s “DUI car” to come to the scene and then placed Defendant in the back
of her patrol car. Defendant was unsteady, had difficulty getting out of his car, and Deputy
Peterson had to hold on to Defendant and guide him to her patrol car. Deputy Michael
Kraemer, who was in the “DUI car,” arrived and began to give field sobriety tests to
Defendant. Defendant admitted that he had “like five drinks around [ ] 8:00 o’clock.”
Deputy Peterson testified that after performing very poorly on one field sobriety test,
Defendant stated “that he couldn’t do the test and that it didn’t matter, he’s already messed
up.” Deputy Peterson also testified that she had driven down Holmes Road at least twice on
the same shift that night without seeing Defendant before she found Defendant stopped in
front of the gate.

        Shelby County Deputy Sheriff Michael Kraemer testified that he was assigned to the
DUI unit on the night Defendant was arrested. Deputy Kraemer went to the location of the
New Sardis Baptist Church at 7705 East Holmes Road. He got Defendant out of Deputy
Peterson’s patrol car and both deputies brought Defendant to the front side of Deputy
Kraemer’s patrol car. Defendant “had a really hard time comprehending the instructions”
for the “walk and turn” field sobriety test. He kept interrupting Deputy Kraemer’s efforts to
give instructions. One interruption was Defendant’s request that he be allowed to “take a
crap.” Defendant ultimately started the attempt at the walk and turn test “several times too
early,” before being instructed to begin, and Defendant “just couldn’t maintain his position.”
Defendant had difficulty going the first nine steps. He did not step heel to toe and he stepped
off the imaginary line. When Defendant turned around, he could not perform the test to
return to Deputy Kraemer. Defendant declined to attempt further filed sobriety tests. Deputy
Kraemer testified that Defendant “just said he was messed up or something in effect that he
couldn’t do it - - I [Defendant] messed up and you have me or something to the effect of

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that.” Deputy Kraemer identified the implied consent form utilized in Defendant’s case, and
specifically noted the checklist on the back of the form where officers record their
observations. Noted on the checklist for Defendant were (1) a strong odor of alcohol; (2)
bloodshot watery eyes; (3) slurred speech, “mumbled big time;” (4) falling, swaying, and
staggering; (5) Defendant was crying; and (6) Defendant was cooperative and polite, but had
“slow reaction.”

       Defendant agreed to submit to a test on an intoximeter at the scene to determine his
blood alcohol content. The test results showed Defendant’s blood alcohol concentration to
be 0.228.

       Defendant did not present any proof.

       The indictment in this case charged Defendant with DUI in four separate counts based
upon four separate theories of guilt. Count 1 charged Defendant with DUI for driving or
being in physical control of his vehicle on the parking lot of New Sardis Baptist Church,
while being under the influence of any intoxicant. Count 2 alleged DUI per se, while driving
or being in physical control of his vehicle with a blood alcohol concentration of 0.20 or more
on the church’s parking lot. Counts 3 and 4 were identical to counts 1 and 2, respectively,
with the notable exception that counts 3 and 4 each alleged that Defendant’s DUI occurred
“upon a public highway.”

      The jury found Defendant guilty of all four counts. The trial court subsequently
merged the convictions in counts 2, 3, and 4 with the conviction in count 1.

Analysis

        In his brief Defendant concedes that there was sufficient evidence that he was in
physical control of his vehicle and that he was under the influence of an intoxicant when
arrested. In his first challenge to the sufficiency of the evidence he asserts that the State
failed to prove beyond a reasonable doubt that the driveway where he was found inside his
vehicle is a place “generally frequented by the public at large.” At the time of Defendant’s
arrest, DUI was defined as follows:

        55-10-401. Driving under the influence of intoxicant, drug or drug
        producing stimulant prohibited – Alcohol concentration in blood or
        breath. – (a) 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, 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 that is generally frequented by the public at
        large, while:

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               (1) Under the influence of any intoxicant, marijuana, narcotic drug,
        or drug producing stimulating effect on the central nervous system; or

               (2) The alcohol concentration in the person’s blood or breath is
        eight-hundredths of one percent (.08%) or more.

       We deem it unnecessary to address Defendant’s challenge to the sufficiency of the
evidence under this theory. As noted above, the jury found Defendant guilty under three
additional theories of DUI in counts 2, 3, and 4. The convictions on those counts were not
dismissed by the trial court. Instead, they were properly merged with the conviction in count
1. Having been merged, the conviction in either count 2, count 3, or count 4 can be
reinstated if necessary. An appellate court is allowed to review a trial court’s merger of
convicted offenses if the guilty verdicts have been approved by the trial court, and then
reinstate a previously merged jury verdict if necessary. State v. Morrow, 72 S.W.3d 337, 342
n. 4 (Tenn. Crim. App. 2001) (citing State v. Davis, 613 S.W.2d 218, 221 (Tenn. 1981)).

       Count 3 of the indictment specifically alleges that Defendant,

        on February 25, 2009 in Shelby County, Tennessee, and before the finding
        of this indictment, did unlawfully, while under the influence of an intoxicant,
        drive and physically control a motor vehicle upon a public highway in Shelby
        County, Tennessee, in violation of T.C.A. § 55-10-401 . . .

       As to the evidence to support a conviction of count 3 Defendant states in his brief that

        Therefore, [the] evidence did not support a conviction under the third and
        fourth charge of the indictment, which charged that the Defendant drove or
        physically controlled his vehicle on a public road. Defendant does not
        claim that he was not impaired when detained by officers, nor does he deny
        that he used the public road to reach the closed parking lot, but the evidence
        simply does not support the State’s claim that Defendant drove on the
        public road while impaired.

      We reinstate the jury verdict of guilty as charged in count 3 of the indictment, and
merge the guilty verdicts in counts 1, 2, and 4 with the conviction in count 3. We thus
address Defendant’s issue challenging the sufficiency of the evidence to sustain the
conviction in count 3.

       It is correct that no witness testified that he/she observed Defendant driving on
Holmes Road or any other public road in the early morning hours of February 25, 2009, prior
to Defendant’s arrest. However the circumstantial evidence that Defendant drove and was
in physical control of his vehicle on Holmes Road while under the influence of an intoxicant

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is sufficient to sustain his conviction. Recently in State v. Dorantes, 331 S.W.3d 370 (Tenn.
2011), our supreme court adopted the United States Supreme Court’s standard for
determination of whether circumstantial evidence is sufficient to support a conviction. In
doing so our supreme court quoted the standard enunciated in Holland v. United States, 348
U.S. 121, 139-40 (1954):

        Circumstantial evidence . . . is intrinsically no different from testimonial
        evidence. Admittedly, circumstantial evidence may in some cases point to
        a wholly incorrect result. Yet this is equally true of testimonial evidence.
        In both instances, a jury is asked to weigh the chances that the evidence
        correctly points to guilt against the possibility of inaccuracy or ambiguous
        inference. In both, the jury must use its experience with people and events
        in weighing the probabilities. If the jury is convinced beyond a reasonable
        doubt, we can require no more.

Dorantes, 331 S.W.3d at 380.

       When a defendant challenges the sufficiency of the evidence, the standard of review
by an appellate court is whether “‘after considering 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.’” State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000) (quoting State
v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999)).

        A review of the evidence taken in a light most favorable to the State shows that a
person would have to drive on Holmes Road, a public road, in order to turn his or her vehicle
into the church’s driveway where Defendant was found at 1:00 a.m. Defendant admitted to
having had at least five drinks five hours earlier at 8:00 p.m. When he was found, his blood
alcohol concentration was 0.228, and pursuant to Tennessee Code Annotated section 55-10-
408, evidence of a blood alcohol concentration of 0.08 or more creates an inference that a
defendant’s ability to drive is impaired to constitute a violation of Tennessee Code Annotated
section 55-10-401(a)(1). There was evidence that Deputy Peterson had driven by the
driveway on her shift at least twice before seeing Defendant there, therefore narrowing the
time frame of how long Defendant had been at the scene. Defendant was asleep in his still
running car with the transmission in “drive.” As noted by the state in its brief, the jury
“could reasonably infer that the defendant had pulled off Holmes Road into the church
driveway in an intoxicated state, such that he did not have the presence of mind to shut off
his vehicle or even put it in park before going to sleep.”

       The basis of Defendant’s argument is that the State did not disprove the theory that
Defendant first pulled into the church’s driveway and then drank himself “to the point of
impairment.” Under the standard approved in Dorantes, Defendant’s assertion is without
merit. Defendant is not entitled to the relief he seeks in this appeal.

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                                       CONCLUSION

        The conviction for DUI third offense is affirmed. However, we reinstate the
conviction for count 3 and remand to the trial court for entry on an amended judgment
showing a conviction as to count 3 and with counts 1, 2, and 4 merged with count 3. Also,
the trial court shall correctly set forth the sentence as 11 months and 29 days with all but 160
days suspended.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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