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State v. Young12/20/1999
On January 7, 1997, the Dickson County Grand Jury indicted Appellant Bobby J. Young for driving under the influence of an intoxicant ("DUI"), fourth offense; driving on a revoked license ("DORL"), second offense; and violating the open container law. Following a jury trial on May 20, 1997, Appellant was convicted of fourth offense DUI, second offense DORL, and violating the open container law. After a sentencing hearing on September 12, 1997, the trial court imposed sentences of eleven months and twenty-nine days for the fourth offense DUI conviction, eleven months and twenty-nine days for the second offense DORL conviction, and thirty days for the open container violation. In addition, the sentences for fourth offense DUI and second offense DORL were ordered to run consecutively to each other and the sentence for the open container violation was ordered to run concurrently with the other sentences. Appellant challenges both his convictions and his sentences, raising the following issues:
1) whether the indictment was defective;
2) whether it was unconstitutional to ask Appellant to submit to a breath analysis test;
3) whether the trial court erred when it allowed a police officer to give his opinion about Appellant's level of intoxication at the time of arrest;
4) whether the trial court erred when it instructed the jury that Appellant's refusal to submit to a breath analysis test could be considered against him;
5) whether the evidence was sufficient to support Appellant's convictions;
6) whether evidence of Appellant's prior convictions was properly admitted into evidence;
7) whether the prior convictions used to enhance Appellant's DUI conviction to fourth offense DUI are void on their face;
8) whether the trial court erred when it failed to instruct the jury about the State's burden of proving that Appellant was the same individual who was convicted of the prior DUI offenses;
9) whether the trial court properly considered convictions listed in the presentence report when it sentenced Appellant;
10) whether the trial court imposed excessive sentences; and
11) whether the trial court erred when it imposed consecutive sentencing.
After a review of the record, we affirm the judgment of the trial court in part and vacate the judgment in part.
I. FACTS
On November 4, 1998, Appellant filed a motion in which he asked this Court to accept an attached statement of facts in lieu of a properly filed record. On November 19, 1998, this Court denied the motion and ordered Appellant to either have the trial transcripts prepared and filed as a supplemental record or file a statement of the evidence and a motion to supplement the record with the trial court pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure. Despite this Court's express directions, Appellant has failed to have the trial transcripts filed as a supplemental record and has failed to file a statement of evidence in the trial court pursuant to Rule 24(c).
Because of Appellant's failure to comply with this Court's order to properly supplement the record, we have only a vague outline of the facts of this case. It appears that on July 19, 1996, Deputy Derrick Jones of the Dickson County Sheriff's Office received a report that an intoxicated individual was driving a vehicle on Highway 49 near Charlotte, Tennessee. Deputy Jones subsequently stopped the vehicle and observed that Appellant was the driver. When Deputy Jones approached the vehicle, he smelled the odor of alcohol and he saw an open can of beer on the floor. Appellant then ad
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