Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Jackson January 6, 2015
Appeal from the Circuit Court for Williamson County No. II-CR025406 Timothy L. Easter, Judge
Sandra L. Wells, Franklin, Tennessee, for the appellant, Mark A. Crites.
Herbert H. Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly A. Lawrence, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
Appellant was involved in a single-vehicle accident on September 19, 2010, and was subsequently indicted for operating a motor vehicle after being declared a habitual traffic offender; DUI; and DUI, second offense. See State v. Mark A. Crites, No. M2013-01681-CCA-R3-CD, 2014 WL 2567146, at *1 (Tenn. Crim. App. June 6, 2014). Prior to trial, the count for operating a motor vehicle after being declared a habitual traffic offender was severed from the remaining two counts and the counts for DUI and DUI, second offense were bifurcated. Appellant was convicted of operating a motor vehicle after being declared a habitual traffic offender, and appellant unsuccessfully appealed that conviction. See Mark A. Crites, 2014 WL 2567146, at *1. This appeal concerns the counts for DUI and DUI, second offense. A jury considered the DUI charge, and appellant waived a jury trial regarding the count for DUI, second offense, opting instead for a bench trial.
At the jury trial, Cory Kroeger, a police officer in Franklin, Tennessee, testified that on September 19 at approximately 11:30 p.m., he "observed a small four-door red vehicle that appeared to have been driven off into a drainage ditch." The vehicle had at least one flat tire and was tilted in a way that the tires could not gain traction. He and his partner observed a young man walking away from the vehicle and a car that was "idling" was parked in the parking lot of a closed business near the scene of the incident. Officer Kroeger's partner talked to the young man, James Sweeny, Jr., and Officer Kroeger talked to the driver of the idling car, who was Mr. Sweeny's mother. Officer Kroeger then saw appellant, who was trying to get into Ms. Sweeny's car. Officer Kroeger asked appellant to speak with him about the accident, and he observed that appellant was "unsteady on his feet[, ] . . . [had] slurred speech[, ]" and "had a very strong odor of an alcoholic beverage emitting from his person."
Officer Kroeger testified that appellant told him that he had not been driving the vehicle but that he had gotten in the driver's seat to attempt to move the vehicle out of the ditch but was unsuccessful. Officer Kroeger denied seeing any males other than Mr. Sweeny and appellant in the area. Neither Mr. Sweeny nor appellant had any noticeable physical injuries. Officer Kroeger stated that appellant may have said that Mr. Sweeny had been driving the car but that appellant did not mention a person named Malcomb Bennett. Although appellant stated that he had not been drinking, Officer Kroeger had appellant perform two field sobriety tests, both of which appellant failed. Officer Kroeger arrested appellant for DUI. Appellant repeatedly stated that he had not driven the car and explained that he did not know where the keys to the car were located. During cross-examination, Officer Kroeger conceded that he did not ask anyone at the scene if they needed medical attention and that he did not call for an ambulance.
Franklin Police Lieutenant Chris Clausi testified that he responded to the accident scene and arrived after Officer Kroeger and his partner. He further testified that fifteen minutes prior to his responding to the accident, he had seen appellant driving a small red car on West Main Street. When asked, "[H]ow confident are you that that same person you saw, the person driving the vehicle earlier, was [appellant]?" Lieutenant Clausi responded, "One hundred percent confident." During cross-examination, Lieutenant Clausi stated that appellant's identity "stuck in [his] mind" because he saw him at the intersection and then fifteen minutes later, saw the same vehicle and appellant involved in a car accident. He explained that when he initially saw appellant, his patrol car was stopped while waiting to turn and that he was in a well-lit area. The State rested its casein-chief.
On behalf of appellant, Donna Peek testified that on September 19, 2010, she gave the keys to a "reddish maroon" car to Malcomb Bennett so that Mr. Bennett could drive appellant and Mr. Sweeny to the store to buy cigarettes for appellant and Ms. Peek. She stated that she saw Mr. Bennett get into the driver's seat of the car.
Malcomb Bennett testified that on September 19, 2010, he went to appellant's house and that he drove a red car to the store to buy cigarettes. During the trip, the car got a flat tire, and he pulled the car to the side of the street. Due the steep embankment, the car slid off into a ditch. Mr. Bennett stated that he left the scene to try to find a spare tire, leaving appellant, another man, and the keys to the car at the scene, but that after visiting "two or three different places, " he was unable to find a tire that fit the car. Mr. Bennett explained that he went back to the scene of the accident the next morning but that the car was no longer there. During cross-examination, Mr. Bennett stated that he drove the car because appellant had been drinking, although he was uncertain as to the amount of alcohol appellant had consumed. Mr. Bennett described his attempts to find a tire and stated that his search lasted between twenty-five and thirty minutes before he decided to go home. Mr. Bennett stated that he had never told anyone that he was driving the vehicle on the night in question because "[n]obody ever asked [him]."
After hearing this proof, the jury found appellant guilty of DUI. At the subsequent bench trial regarding the count for DUI, second offense, the trial court received a certified copy of a prior DUI conviction and found that appellant was guilty beyond a reasonable doubt of DUI, second offense. The trial court merged the two DUI convictions and ...