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State v. Fitzgerald9/20/1999
The defendant, Matthew S. Fitzgerald, was convicted of two counts of child endangerment, Class A misdemeanors. Tenn. Code Ann. § 55-10-414(1). The trial court merged the judgment on Count Two into Count One and imposed an eleven-month, twenty-nine day sentence at seventy-five percent. The defendant was ordered to serve thirty days in jail, had his driver's license revoked, and was fined $1,000.00.
In this appeal of right, the single issue presented by the defendant is whether the trial court abused its discretion by failing to declare a mistrial. We find no abuse of discretion and affirm the judgment of the trial court.
At 3:30 A.M. on April 6, 1997, Jellico City Police Officer Scott Lindsay observed a vehicle, which he described as traveling at a high rate of speed, skid as the driver made a right turn. The officer followed the vehicle into a parking lot at the Jellico Motel and identified the defendant as the driver. At trial, the officer testified that the defendant, who had two of his minor daughters as passengers in his car, smelled of alcohol. In response to questioning at the scene, the defendant admitted having consumed approximately six beers. His speech was impaired and his eyes appeared to be glassy and watery. According to Officer Lindsay , the defendant failed two field sobriety tests. The officer stated that in his opinion the defendant was under the influence of an intoxicant at the time of the arrest. Officer Joe Perkins, Jr., who assisted in the arrest, corroborated much of Officer Lindsay's testimony.
The defendant, a truck driver from Illinois, was the custodian of his three children. At trial, he testified that he was visiting friends, Keith and Joyce Chesser, in Campbell County and had spent much of the prior day in their company. He related that he had one beer at the Chesser residence during the afternoon hours of the prior day and another at a bar at approximately 6:30 P.M. The defendant stated that, after snacking, he had a "couple of beers" at a bar, making a total of four for the entire day. He recalled that he and Chesser then visited some friends and ate at a fast food restaurant before returning to the Chesser residence where he picked up his two daughters and began his drive back to the Jellico Motel . The defendant denied that he was either driving recklessly or under the influence.
At the Conclusion of the proof, the trial court instructed the jury on the elements of child endangerment which provides in pertinent part as follows:
A person who violates § 55-10-401, and who at the time of the offense was accompanied by a child under thirteen (13) years of age:
(1) Commits the offense of child endangerment, a Class A misdemeanor, punishable by a mandatory minimum incarceration of thirty (30) days and a mandatory minimum fine of one thousand dollars ($1,000.00), which incarceration and fine shall be in addition to any other incarceration and fine required by law.... Tenn. Code Ann. § 55-10-414.
As a part of the instruction, the trial court defined the offense of driving under the influence of an intoxicant as set out in Tenn. Code Ann. § 55-10-401:
(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 which is generally frequented by the public at large, while:
(1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or
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