State of Tennessee v. Emmett Hartnest, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 10, 2012

STATE OF TENNESSEE v. EMMETT HARTNEST, JR.

Appeal from the Circuit Court for Hardin County

No. 9368 C. Creed McGinley, Judge

No. W2011-02443-CCA-R3-CD - Filed September 17, 2012

The Defendant-Appellant, Emmett Hartnest, Jr., was convicted by a Hardin County jury of

driving under the influence (DUI), a Class A misdemeanor, and was sentenced as a Range

I, standard offender to eleven months and twenty-nine days, with Hartnest to serve ten days

in the Hardin County Jail before serving the balance of his sentence on supervised probation.

On appeal, Hartnest argues that: (1) the evidence is insufficient to support his conviction and

(2) his sentence was excessive. Upon review, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT

W ILLIAMS and A LAN E. G LENN, JJ., joined.

Guy T. Wilkinson, District Public Defender; Richard W. DeBerry, Assistant Public Defender,

Camden, Tennessee, for the Defendant-Appellant, Emmett Hartnest, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Hansel Jay McCadams, District Attorney General; and Frankie K. Stanfill, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

Trial. Officer Charles Childress of the Savannah Police Department testified that

he saw a van leave a home on Shell Street and turn onto Hurt Street on May 11, 2010, at

approximately 11:00 p.m. Because the van was moving fairly slowly, he decided to follow

it. He saw the van turn from Perch Street onto Roosevelt Drive. As Officer Childress

checked the license plate on the van, he noticed a beer can sitting on the van’s bumper, which

indicated that the driver was possibly under the influence of an intoxicant. Officer Childress

saw the van make “somewhat of a wide turn” onto Roosevelt Drive and followed it for a

short distance before turning on his blue lights and siren. The vehicle stopped near the

intersection of Washington Street and Roosevelt Drive. When Officer Childress approached

the driver’s side window, he saw that there were two people, other than the driver, inside the

van and noticed that there was “a strong odor of an alcoholic beverage coming from the

vehicle.” He asked the driver of the van, later identified as Hartnest, to step away from the

van so that he could determine whether the smell of alcohol was coming from him. Officer

Childress asked Hartnest if he had been drinking, but he did not remember Hartnest’s

response. He checked Hartnest’s license, which was valid. After talking with Hartnest,

Officer Childress immediately detected a “strong” odor of alcohol coming from Hartnest’s

breath. When he asked Hartnest to complete some field sobriety tests, Hartnest informed him

that he had some sort of physical impairment that prevented him from completing the tests

that involved him walking in a straight line or standing on one leg. Because Officer

Childress was unable to administer the standardized field sobriety tests, he administered three

non-standardized field sobriety tests to Hartnest. Officer Childress said that he arrested

Hartnest based on the totality of his observations:

I [had] seen [Hartnest] drive, [I had seen] the obvious beer can on the bumper

of the vehicle, [and I had observed] the odor [that] was coming from

[Hartnest] when he was speaking. I took all of that into consideration[,] and

that’s when I made the arrest for driving under the influence.

After arresting Hartnest for DUI, Officer Childress took Hartnest to the Hardin

County Hospital to obtain a blood sample. Once there, Officer Childress read Hartnest the

State of Tennessee Implied Consent Law Advisement form, which states that an individual’s

refusal to submit to a chemical test to determine the alcohol or drug content of his or her

blood will result in a suspension of that individual’s driver’s license. Hartnest signed the

implied consent form at the hospital, and Officer Childress observed one of the employees

of the hospital draw Hartnest’s blood. The blood sample was forwarded to the Tennessee

Bureau of Investigation (TBI) for testing.

On cross-examination, Officer Childress acknowledged that he did not make field

notes in Hartnest’s case. He also acknowledged that his citation did not mention that he

observed Hartnest driving slowly, that he saw a beer on Hartnest’s bumper, or that he

witnessed Hartnest making a wide turn. Officer Childress read the narrative from his police

report:

[Hartnest] stopped . . . at the corner of Roosevelt [Drive] and Washington

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[Street]. I noticed that [he] had an open Natural Ice can on the back bumper of his

van. I asked [Hartnest] to step out. He had a strong odor of an alcoholic beverage on

his breath.

[Hartnest] was given three field sobriety tests. Based on [his] performance on

the tests, [Hartnest] was arrested for DUI. [He] did consent to a test to

determine the alcohol in his blood.

Officer Childress said that the basis for Hartnest’s stop was that he “had reason to

believe[,] based on how [Hartnest] operated his vehicle, [and the fact that there was a] beer

can on the bumper of the vehicle, . . . that a crime was being committed[.]” He admitted that

the presence of the beer can did not necessarily mean that Hartnest was driving under the

influence. He further admitted that one of the passengers in the van could have been

responsible for placing the beer can on Hartnest’s bumper. In addition, Officer Childress

acknowledged that the odor of an alcoholic beverage emanating from an individual does not

necessarily mean that the individual is impaired. Officer Childress said he was unable to

administer the standardized field sobriety tests because of Hartnest’s physical impairment.

However, he was unable to recall the three non-standardized tests that formed the basis of

Hartnest’s arrest.

Officer Childress stated that he stopped Hartnest based on his slow driving, his wide

turn, and the presence of a beer can on his bumper. He said that Hartnest complied with his

requests to step out of the van and to provide his driver’s license and registration.

Bethany McBride testified that she was a forensic scientist and special agent with the

TBI. Her testing of Hartnest’s blood sample revealed that he had a blood alcohol

concentration of .13% at the time the sample was taken.

Hartnest declined to testify at trial. No proof was offered by the defense. Following

the close of proof and deliberations, the jury convicted Hartnest of DUI.

Sentencing Hearing. At the sentencing hearing, the court admitted Hartnest’s

presentence report into evidence. Although the report showed that Hartnest had been

previously convicted of DUI in Georgia, Hartnest claimed that he never entered a guilty plea

to this offense. However, he admitted that he had attended a DUI school for this offense.

The court characterized the DUI in Georgia as a “[p]rior history of violation whether it’s a

conviction or not.” During Hartnest’s statement of allocution, he accused Officer Childress

of police brutality. When the State informed the trial court that the TBI had investigated

Hartnest’s allegations, the court stated:

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What I have in front of me is what the jury heard in this case, which was

overwhelming evidence of guilt.

Not just a little bit [of guilt], but one of those things if you’re driving

down a public street at night with a beer can on your bumper, you’re going to

get stopped ten out of ten times. . . .

....

And [Hartnest] was intoxicated. There is no question in the Court’s

mind [that he was intoxicated, which was] confirmed by the evidence that was

presented at court as well as the blood alcohol test.

At the conclusion of the sentencing hearing, the trial court imposed a sentence of

eleven months and twenty-nine days, with Hartnest to serve ten days in the Hardin County

Jail before serving the balance of his sentence on supervised probation.

ANALYSIS

I. Sufficiency of the Evidence. Hartnest argues that the evidence is insufficient to

support his conviction for DUI. He also apparently asserts, without citation to any supporting

authorities, that his citation was somehow deficient because it failed to state the basis for his

stop and failed to note that the arresting officer observed a beer can on the bumper of his van.

We conclude that the evidence is sufficient to support his conviction.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court

or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact

of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case

where there is direct evidence, circumstantial evidence, or a combination of the two. State

v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551

S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

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The trier of fact must evaluate the credibility of the witnesses, determine the weight

given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the

evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960

S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the

jury, approved by the trial court, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A

guilty verdict also “removes the presumption of innocence and replaces it with a presumption

of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to

support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

Regarding Hartnest’s argument that his citation for DUI was somehow deficient

because it failed to state the basis for his stop and failed to note that the arresting officer

observed a beer can on the bumper of his van, we conclude that he is not entitled to relief.

The United States Constitution and the Tennessee Constitution state that a defendant is

entitled to knowledge of “the nature and cause of the accusation.” U.S. Const. amend. VI;

Tennessee Const. art. I, § 9. Pursuant to State v. Hill, an indictment is valid if it contains

sufficient information “(1) to enable the accused to know the accusation to which answer is

required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3)

to protect the accused from double jeopardy.” 954 S.W.2d at 727 (citing State v. Byrd, 820

S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App.

1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). In addition, pursuant

to Tennessee Code Annotated section 40-13-202, the indictment must

state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in such a manner so as to enable a person of

common understanding to know what is intended, and with that degree of

certainty which will enable the court, on conviction, to pronounce the proper

judgment. . . .

T.C.A. § 40-13-202 (2006). Although the previous authorities refer to the requirements for

indictments, they are also helpful in determining whether the misdemeanor citation in this

case gave Hartnest proper notice of his charge. “The fundamental test of the sufficiency of

an indictment is the adequacy of the notice to the defendant conveyed by its terms.” Green

v. State, 143 S.W.2d 713, 715 (Tenn. 1940). Upon review, we conclude that the

misdemeanor citation provided adequate notice to Hartnest because it placed him on notice

as to the charge, placed jurisdiction of the case squarely with the trial court, and foreclosed

double jeopardy problems. See Hill, 954 S.W.2d at 727.

We also conclude that the evidence, viewed in the light most favorable to the State,

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is sufficient to support Hartnest’s conviction for DUI. Here, the State had to prove beyond

a reasonable doubt that Hartnest drove or was “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 . . . while . . . [u]nder the influence of any intoxicant[.]” T.C.A. § 55-10-401(a)(1)

(2006). We note the statutory presumption regarding impairment:

For the purpose of proving a violation of § 55-10-401(a)(1), evidence that

there was, at the time alleged, eight-hundredths of one percent (.08%) or more

by weight of alcohol in the defendant’s blood shall create a presumption that

the defendant’s ability to drive was sufficiently impaired thereby to constitute

a violation of § 55-10-401(a)(1).

Id. § 55-10-408.

Officer Childress testified that he stopped Hartnest because of Hartnest’s driving and

the presence of a beer can on the bumper of his van. After Officer Childress asked Hartnest

to exit the van, he detected a “strong” odor of alcohol emanating from him. He also stated

that Hartnest’s poor performance on the three non-standardized field sobriety tests was

indicative of his impairment. Most importantly, Hartnest’s blood alcohol concentration was

.13%, greatly in excess of the statutory presumption regarding impairment. As we previously

stated, we will not “reweigh or reevaluate the evidence.” Henley, 960 S.W.2d at 578-79.

Accordingly, we conclude that there is sufficient evidence to sustain Hartnest’s conviction

for DUI.

II. Sentencing. Hartnest also argues that he should have received the minimum

sentence of two days, rather than ten days, in the county jail; however, he has waived this

issue because he provides no argument as to why he should receive the lesser sentence. See

Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this court.”);

Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the

contentions of the appellant with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief, with citations to the

authorities and appropriate references to the record . . . relied on.”). Waiver notwithstanding,

we conclude that the trial court did not err in sentencing.

On appeal, we must review issues regarding the length and manner of service of a

sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.

§ 40-35-401(d) (2006). However, “the presumption of correctness which accompanies the

trial court’s action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.” State

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v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Because the trial court considered the

purposes and principles of the sentencing act, our review is de novo with a presumption of

correctness. See id.

Sentences for misdemeanor offenses must be specific and in accordance with the

principles, purpose, and goals of the Criminal Sentencing Reform Act of 1989. T.C.A. §§

40-35-104, -302 (2006). The sentencing court is granted considerable latitude in

misdemeanor sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999)

(citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). While a separate sentencing

hearing is not mandatory in misdemeanor cases, the court must provide the defendant with

a reasonable opportunity to be heard regarding the length and manner of the sentence. See

T.C.A. § 40-35-302(a) (2006).

“[A] misdemeanor offender must be sentenced to an authorized determinant

sentence[,]” and “a percentage of that sentence, which the offender must serve before

becoming eligible for consideration for rehabilitative programs, must be designated.” State

v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). Typically, a percentage not greater than 75

percent of the sentence should be fixed for a misdemeanor offender; however, an individual

convicted of DUI may be required to serve 100% of his or her sentence. Id. at 393-94.

An individual convicted of a misdemeanor has no presumption of entitlement to a

minimum sentence. Johnson, 15 S.W.3d at 518 (citing State v. Baker, 966 S.W.2d 429, 434

(Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994)).

The misdemeanor sentencing statute requires that the trial court consider the purposes and

principles of sentencing and the applicable enhancement and mitigating factors when

calculating the percentage of the sentence to be served in confinement prior to “consideration

for work release, furlough, trusty status and related rehabilitative programs.” T.C.A. § 40-

35-302(d) (2006). However, there is no strict requirement that the trial court make findings

on the record regarding the percentage of the defendant’s sentence to be served in

confinement:

[W]hile the better practice is to make findings on the record when fixing a

percentage of a defendant’s sentence to be served in incarceration, a trial court

need only consider the principles of sentencing and enhancement and

mitigating factors in order to comply with the legislative mandates of the

misdemeanor sentencing statute.

Troutman, 979 S.W.2d at 274 (footnote omitted).

Tennessee Code Annotated section 55-10-403(s)(1) specifies the minimum term of

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confinement for DUI, first offense:

[A] person convicted of violating § 55-10-401 for the first time shall be

punished as follows: the court shall sentence the person to confinement in the

county jail or workhouse for not less than forty-eight (48) hours nor more than

eleven (11) months and twenty-nine (29) days[.]

T.C.A. § 55-10-403(s)(1) (Supp. 2008).

We conclude that the trial court did not err in sentencing Hartnest. After noting

Hartnest’s prior DUI in Georgia and his high blood alcohol concentration in this case, the

trial court sentenced him to ten days in confinement rather than the minimum sentence of

forty-eight hours, or two days, in confinement. We reiterate that an individual convicted of

a misdemeanor has no presumption of entitlement to a minimum sentence. See Baker, 966

S.W.2d at 434. The record supports the trial court’s findings. Accordingly, the sentence is

affirmed.

CONCLUSION

We conclude that the evidence is sufficient to support the conviction and that the

sentence was proper. The judgment of the trial court is affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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