         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

                 STATE OF TENNESSEE v. HAROLD J. TURNER

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 00-09301    Chris Craft, Judge



                  No. W2001-02613-CCA-R3-CD - Filed September 4, 2002


The defendant, Harold J. Turner, was convicted of driving under the influence (“DUI”) and
sentenced to eleven months, twenty-nine days in the county workhouse, with all but seven days
suspended and the balance to be served on probation. In addition, his driver’s license was revoked
for one year and he was ordered to attend alcohol safety school and pay a fine of $500. In his appeal,
the defendant argues that the trial court should have instructed the jury to consider whether he was
guilty of driving while impaired without first having to determine that he was not guilty of DUI.
Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Tony L. Axam, Atlanta, Georgia (on appeal), and William Monroe, Memphis, Tennessee (at trial),
for the appellant, Harold J. Turner.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William L. Gibbons, District Attorney General; and James Lammey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The State’s first witness was Officer Carl Dyer of the Germantown Police Department who
testified that while on duty on February 3, 2000, he observed an automobile strike the curb three
times as he was observing traffic at the Carrefour Mall on Poplar Avenue. He stopped the vehicle
after seeing it “dart across lanes of traffic, northbound on Poplar and then come back southbound
on Poplar and run across the curb there at Poplar and Kirby.” Officer Dyer described as he then went
up to the vehicle:
                       As I approached the vehicle I observed a strong odor of
               alcohol, or intoxicant commonly associated as alcohol coming from
               the driver’s side window. Upon speaking to the driver, he identified
               himself as Mr. Harold Turner and I observed his eyes to be red, blood
               shot and watery, and also, the very strong odor of alcohol coming
               from his person.

        Officer Dyer said that the defendant, who was driving the vehicle, needed support as he got
out and nearly fell before the officer grabbed him. The defendant sat in the rear of Officer Dyer’s
vehicle until the DUI van arrived. Metro DUI Officer Bruce Bickerstaff attempted to administer
field sobriety tests to the defendant, as Officer Dyer observed. Dyer testified that the defendant did
“very poorly.” We have reviewed the videotape of the defendant’s attempts to stand on one foot
while counting and walk heel-to-toe, and it supports this assessment. Dyer described the defendant
as being “very thick-tongued and confused,” and said that, in his opinion, the defendant was very
intoxicated.

         Officer Bruce Bickerstaff, a Memphis police officer assigned to the Metro DUI Squad,
testified as the State’s next witness. He said that he asked the defendant six times if he wanted to
submit to a breathalyzer test. The defendant “refused to cooperate and refused to answer” whether
he would take the test, so Bickerstaff concluded that the defendant refused to do so. In his opinion,
the defendant was “highly impaired.” During his testimony, the videotape was played for the jury.

       The State rested, following the testimony of Officer Bickerstaff; and the defense then rested
without presenting proof.

                                             ANALYSIS

        The defendant has presented, as the single issue on appeal, that his right to due process was
violated by the trial court’s instructing sequentially as to DUI and driving while impaired, with the
jury not to consider the lesser offense unless it first determined that the defendant was not guilty of
DUI. According to the defendant’s argument, “such a prioritization was not expressly in the statute.”

        In analyzing this issue, we note first that, in an opinion released approximately two months
after the trial of this matter, this court determined that the offense of adult driving while impaired
is not a lesser-included offense of DUI:

               We conclude that proof that the offender is “twenty-one years (21) of
               age or older” is not “a less serious harm or risk of harm to the same
               person, property or public interest” or “a differing mental state
               indicating a lesser kind of culpability” under part (b) of the Burns test.
               Id. Accordingly, we hold that the offense of adult driving while
               impaired is not a lesser-included offense of driving under the
               influence under the test pronounced in Burns. See Burns, 6 S.W.3d


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                [453], 466-467 [Tenn. 1999]. Therefore, the trial court did not err by
                refusing to instruct the jury as to the offense of adult driving while
                impaired. This issue is without merit.

State v. Humphreys, 70 S.W.3d 752, 764 (Tenn. Crim. App.) (footnote omitted), perm. to appeal
denied (Tenn. 2001).

        Accordingly, the defendant was not entitled to have the jury instructed as to adult driving
while impaired because it is not a lesser-included offense of DUI. However, the jury was instructed
as to driving while impaired at the request of the defendant, after counsel had reviewed the trial
court’s intended instructions and saw that the jury was not going to be instructed as to this offense.
The State objected to the jurors’ being instructed as to adult driving while impaired.

         Since the jury was instructed, at the defendant’s request, as to an offense which was not a
lesser-included offense of the indicted offense, it is axiomatic that the trial court did not err in
instructing that the jury must first determine that the defendant was not guilty of the indicted offense
before considering the second. However, even if adult driving while impaired were a lesser-included
offense of DUI, the trial court would not have erred in its instructions. It is settled law that a jury
is instructed to consider, in sequential fashion, first the indicted offense and then the lesser-included
offenses:

                        The appellant next contends that the trial court erred in giving
                sequential instructions on first degree murder, second degree murder,
                and voluntary manslaughter. We disagree. This court has repeatedly
                upheld “acquittal-first” instructions. See State v. Raines, 882 S.W.2d
                376, 381-82 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
                1994); State v. McPherson, 882 S.W.2d 365, 375 (Tenn. Crim. App.),
                perm. to appeal denied, (Tenn. 1994); State v. Rutherford, 876
                S.W.2d 118, 119-20 (Tenn. Crim. App. 1993), perm. to appeal
                denied, (Tenn. 1994); State v. Beckham, No. 02C01-9406-CR-00107,
                1996 WL 389321 (Tenn. Crim. App., at Jackson, Sept. 27, 1995).
                Accordingly, this issue is without merit.

State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997).

        Thus, we conclude that this issue is without merit.

                                           CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.
                                                 ___________________________________
                                                 ALAN E. GLENN, JUDGE


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