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State v. Green12/14/2000
The defendant appeals from her Blount County Circuit Court conviction and sentence for driving under the influence, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and 29 days in the Blount County Jail, all of which was suspended except for service of eight days incarceration. The jury imposed a fine of $1,500. In this direct appeal, the defendant complains that the evidence is insufficient to support her conviction, that statements she made to the arresting officer should have been suppressed, that prosecutorial misconduct taints the verdict, that the jury should have been charged on reckless driving as a lesser-included offense, and that her sentence and fine are excessive. We affirm the judgment of the trial court, as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Joseph M. Tipton and Jerry L. Smith, JJ., joined.
OPINION
The defendant, Treva Dianne Green, appeals as of right from her Blount County conviction following a jury trial for driving under the influence of an intoxicant (DUI), first offense, a Class A misdemeanor. See Tenn. Code Ann. § 55-10-401 (1997). The trial court imposed a sentence of eleven months, twenty-nine days, with the first eight days to be served in confinement and the remainder on supervised probation. The jury imposed a fine of $1,500. In this appeal, the defendant raises the following issues:
1. Was the evidence sufficient to sustain the defendant's conviction for DUI?
2. Did the trial court err in not suppressing the defendant's statements?
3. Did the prosecution engage in misconduct in closing argument that affected the verdict to the prejudice of the defendant?
4. Did the trial court err in not charging the jury on reckless driving as a lesser-included offense?
5. Did the trial court abuse its discretion in sentencing the defendant and allowing the jury to impose the maximum fine?
After a review of the record, the briefs of the parties, and the applicable law, we affirm the trial court's judgment although we modify the judgment to reflect a confinement percentage of thirty percent of the total sentence.
The defendant was charged with DUI after Townsend police officer Mark Gann stopped the white Jeep Cherokee she was driving along Highway 321 in Blount County on August 6, 1997, just before midnight. Earlier that evening, the E-911 Communications Center had notified local law enforcement to be on the lookout ("BOLO") for this vehicle because it was being operated in a dangerous manner.
Officer Gann drove to the parking lot of the post office on Highway 321. He soon spotted the defendant's white Jeep Cherokee, and when the vehicle passed he pulled out and followed to observe it. He observed that the Jeep Cherokee was weaving, and it crossed the center line of the highway three times. He followed the defendant's vehicle for approximately five-tenths of a mile, and after watching it weave back across the center line the third time, Officer Gann turned on his emergency equipment to signal the motorist to stop, which the defendant did.
Officer Gann approached the vehicle and observed that the driver's side window was down. The defendant produced her driver's license at his request, and when she turned to speak, Officer Gann detected the odor of alcohol about her breath. Before she turned, he did not smell anything. He informed her that she had been stopped because of her erratic driving and the E-911 advisory, and he asked her to walk to the rear of h
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