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State v. Stephens1/29/1999
The appellant, Donald W. Stephens, appeals his conviction for driving under the influence . See Tenn. Code Ann. § 55-10-401. The sole issue for our review is whether the evidence at trial was sufficient for the jury to find guilt beyond a reasonable doubt. We find that it was and AFFIRM the judgment of the trial court.
Police Officers Brian Myatt and Chris Ivey noticed the appellant's truck parked in the edge of a parking lot next to Highway 96 in Fairview, Tennessee. The appellant was in the driver's seat, slumped over the steering wheel, and appeared to be unconscious. The engine of the truck was running, and the lights were on. After repeated attempts, the officers successfully roused the appellant to check his welfare. The appellant opened the door of his truck and stumbled from the vehicle. He was awkward and disorientated, and he smelled of alcohol. When questioned, he admitted to having consumed seven beers; however, Officer Ivey testified that he appeared to have had "much more." The officers administered two field sobriety tests, neither of which the appellant was able to perform properly. The appellant refused to submit to a third test and admitted that he was drunk. Based on the above circumstances, the officers arrested the appellant on suspicion of driving under the influence of alcohol in violation of Tenn. Code Ann. § 55-10-401.
At the time of his arrest, the appellant admitted that he had driven his truck from Dickson, Tennessee. He said he became tired and pulled over to rest. At trial, however, the defense denied that the appellant had driven the truck. Rather, the appellant's girlfriend, Shirley Ann Wright, testified that she had driven the appellant to the parking lot. She said that the appellant had called her from a bar and asked her to pick him up because he was too drunk to drive. Ms. Wright testified that she started driving him home but, because he became belligerent, she stopped in the parking lot where the officers found the truck and called her daughter to come and get her.
On cross-examination, the state asked Ms. Wright to sketch the specific location within the parking lot where she left the appellant and his truck. Ms. Wright also stated that the appellant had slid across the seat of his truck and was asleep behind the steering wheel when she left.
The appellant argues that this evidence was insufficient for the jury to have found the elements of the offense beyond a reasonable doubt. More specifically, he argues that the proof did not conform to the indictment. That is, he does not argue that the proof was insufficient as to the statutory elements of driving under the influence but, rather, that the proof was insufficient to prove the indictment, which varied from the statutory language.
The appellant was convicted under Tenn. Code Ann. § 55-10-401, which provides that " t is unlawful for any person to drive or be in physical control of any . . . motor driven vehicle on any . . . premises which is generally frequented by the public at large, while . . . under the influence of any intoxicant." (emphasis added). In contrast, the indictment charged that the appellant "unlawfully did drive and physically control a motor vehicle . . . while on . . . premises which is frequented by the public at large, at a time when the said Defendant was . . . under the influence of an intoxicant, . . . in violation of Tennessee Code Annotated 55-10-401." (emphasis added).
Because the indictment used conjunctive language, the appellant asserts that the state was required to prove both physical control and that the appellant drove. He then argues that the evidence was insufficient for the jury to conclude beyond a reas
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