State v. Treva Dianne Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 26, 2000 Session

STATE OF TENNESSEE v. TREVA DIANNE GREEN

Appeal from the Circuit Court for Blount County

No. C-10642 D. Kelly Thomas, Judge

No. E1999-02204-CCA-R3-CD

December 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.

Steve Merritt, Maryville, Tennessee for the appellant, Treva Dianne Green, on appeal.

Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Nashville, Tennessee, Michael

L. Flynn, District Attorney General, Edward P. Bailey, Jr., Assistant District Attorney General, Kirk

Andrews, Assistant District Attorney General, for the appellee, State of Tennessee.

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 his cruiser. She complied, but she stumbled over

her feet. Officer Gann told the defendant that he detected the odor of alcohol on her breath; he then

asked if she had consumed any alcohol that night. She responded that she had “probably consumed

too much rum to drive.”

Officer Gann administered the walk-and-turn and the one-leg stand sobriety tests to

the defendant. Although she was barefoot, the roadway was paved at that location. The defendant

did not appear at all focused or attentive when the officer explained to her how to perform the tests,

and she performed poorly. Moreover, during the instructional stage of the tests, the defendant

laughed a lot, and she repeatedly interrupted Officer Gann by giggling. She also patted him on the

shoulder when he demonstrated the one-leg stand and otherwise tried to hang onto him.

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When the field sobriety tests were completed, Officer Gann concluded that the

defendant was under the influence of an intoxicant while operating her vehicle. He arrested her and

transported her to the Blount County jail. Before the drive began, he requested that she submit to

a blood alcohol test; she refused and explained that her attorney always advised her never to take that

test. Then, while en route to the jail, the defendant referred in general terms to her prior run-ins with

the law, and she made suggestive comments about how she had avoided being arrested in another

jurisdiction. Also, once at the jail and just before she was removed from the cruiser, the defendant

asked the officer if she gave him a “blow job,” could she “go home free.”

The defendant did not testify at trial, but her husband, David Lee, did. He recounted

for the jury numerous physical and emotional problems with which his wife recently had been

confronted. The defendant’s mother had died less than six months before the defendant’s arrest in

this case, and the relationship with her brother had thereafter deteriorated and become extremely

acrimonious.

In addition, in 1972 the defendant was involved in an automobile accident that

required multiple surgeries, and approximately three months before her DUI arrest, the defendant

was involved in another car accident that resulted in hospitalization. According to her husband, the

defendant had been diagnosed as suicidal, and she had been prescribed medication for depression.

Because of previous surgeries, the defendant also was receiving hormone shots.

The defendant’s husband claimed that his wife had consumed no alcoholic beverages

the day or evening of her arrest and that, in fact, she did not drink at all. As for the odor of alcohol

on the defendant, the husband explained to the jury that their children had accidently knocked over

his mixed alcoholic beverage earlier in the evening, and the drink had spilled on the defendant. She

did not change her clothing before going for a drive because the family was on its way home from

a vacation, and there were no clean clothes available.

The jury retired and deliberated for 28 minutes in this case before announcing its

verdict that the defendant was guilty of driving under the influence of an intoxicant and that a fine

of $1,500 was assessed.

I. Sufficiency of the Evidence

The defendant complains that the state failed to prove beyond a reasonable doubt that

she was under the influence of an intoxicant. We must disagree.

The standard that we apply in reviewing the sufficiency of the convicting evidence

is familiar. When an accused challenges the sufficiency of the evidence, an appellate court inspects

the evidentiary landscape, including its direct and circumstantial contours, from the vantage point

most agreeable to the prosecution. The reviewing court then decides whether the evidence and the

inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable doubt

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that the defendant is guilty of the charged crime. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.

Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App. 1990); Tenn. R. App. P. 13(e).

The defendant invites us to step into the role of factfinder on appeal. She cites to

Officer Gann’s admission that her vehicle crossed over the center line only by a tire width and that

the swerving could have been for some reason other than intoxication. Officer Gann, the defendant

emphasizes, conceded that the smell of alcohol could have emanated from her clothing.

Furthermore, Officer Gann testified that the defendant did not have bloodshot eyes, dilated pupils,

or slurred speech.

The defendant, likewise, emphasizes her husband’s testimony that she did not partake

of alcohol at all, that their children had accidently knocked over his mixed alcoholic beverage earlier

in the evening, and that the drink had spilled on the defendant. As for the field sobriety tests, the

defendant’s husband testified that she had numerous physical problems affecting her balance; also,

the defendant was barefoot at the time that she was tested.

Despite these remonstrations, we must decline the defendant’s invitation. In

determining sufficiency of the evidence, the court does not replay and reweigh the evidence. See

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness credibility, the weight

and value of the evidence, and factual disputes are entrusted to the finder of fact. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn.1978); Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Simply stated, the court is not

an appellate surrogate for the trier of fact.

Although the Jackson v. Virginia standard of review is often cited, the delicate

balancing of interests that produced the standard is mentioned seldom, if at all. This case serves to

remind us of the balance that has been struck. “[T]he relevant question,” the United States Supreme

Court stated, “is whether, after viewing 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, 443 U.S. at 319, 99 S. Ct. at 2789. The Supreme Court continued,

This familiar standard gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Once a defendant has been found guilty of the crime

charged, the factfinder's role as weigher of the evidence is preserved

through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the

prosecution. The criterion thus impinges upon "jury" discretion only

to the extent necessary to guarantee the fundamental protection of due

process of law.

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Id. (footnotes omitted).

The evidence in the light most favorable to the state shows that the defendant was

driving her vehicle in an erratic and dangerous manner. She crossed over the centerline of the

highway on three occasions while being observed by Officer Gann. When stopped, the defendant

had a detectable odor of alcohol about her. She stumbled after she got out of her vehicle. She failed

two field sobriety tests administered by Officer Gann, and she refused to submit to a blood alcohol

test. When asked if she had been drinking, the defendant replied that she had probably consumed

too much rum to drive. Throughout the roadside encounter, the defendant exhibited inappropriate

behavior. She hung onto the officer and patted him on the shoulder; she also laughed, giggled, and

repeatedly interrupted him. Finally, while she was being transported to jail by the arresting officer,

the defendant made sexually suggestive remarks about how she had previously avoided being

arrested, and she propositioned the officer to let her go free in exchange for performing oral sex on

him.

This court has previously found evidence of DUI sufficient even though it consisted

entirely of the arresting officer’s testimony. In State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim.

App. 1993), the evidence was sufficient to support a DUI conviction when the trial court relied only

upon the arresting officer's testimony that the defendant was driving under the influence. Id. In

Vasser, the defendant did not complete the field sobriety tests and refused to take a breath test. Id.

at 543-44. In State v. Corder, 854 S.W.2d 653 (Tenn. Crim. App. 1992), the defendant was found

asleep in his car and no field sobriety tests were administered. Id. at 654. This court affirmed the

DUI conviction because the trial court accredited the testimony of the arresting officer over the other

witnesses. Id.

Driving under the influence may be shown by circumstantial evidence. State v.

Lawrence, 849 S.W.2d 761, 763 (Tenn. 1993); Corder, 854 S.W.2d at 654. The proof in the present

case was clearly sufficient to allow a rational fact finder to conclude beyond a reasonable doubt,

based upon both direct and circumstantial evidence, that the defendant was driving under the

influence.

II. Suppression Issues

The defendant is aggrieved that the trial court did not grant her motions to suppress

statements she made to the arresting officer. The state correctly notes that the defendant does not

quote in her brief which statements are in issue. Nevertheless, from the transcripts and pleadings

before us, including the defendant’s new trial motion, it is evident that two statements and one

question are involved.

The first statement the defendant made was in response to a question posed by Officer

Gann. During the traffic stop, he asked about her alcohol consumption. She replied that she had

drunk too much rum to drive. The second challenged statement was made while the defendant was

being transported to jail. She referred to prior run-ins with the law and made suggestive comments

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about “doing things” to avoid being arrested in another jurisdiction. The third challenged

“statement” is more properly regarded as a question or an “offer” to the arresting officer. Before

being removed from the police cruiser at the jail, the defendant offered to perform fellatio in

exchange for being released.

The defendant challenges the admissibility of the first statement on constitutional

grounds. She argues that she was subjected to custodial interrogation without having been advised

of her Miranda rights. She claims that any statement to the officer as a result of such custodial

interrogation was unconstitutionally obtained, and thus, the statement should not have been admitted

at trial. The defendant maintains that the second statement and the sexual proposition were

inflammatory and unfairly prejudicial, pursuant to Tennessee Evidence Rule 403, and constituted

inadmissible evidence of other wrongs, crimes, or acts, pursuant to Tennessee Evidence Rule 404(b).

We first will address the constitutional challenge and then discuss the evidentiary objections.

A. Miranda warnings.

At the outset, we must decide what standard of review to apply. In this case, the trial

judge made no findings of fact concerning the defendant’s statements to Officer Gann. Moreover,

no live testimony or evidence was presented at the hearing on the motion to suppress. Rather, the

parties submitted to the trial court a transcript of the preliminary hearing, which was conducted

before a different judge, and the parties argued their respective positions to the trial court. At least

once before on a motion to suppress, when identical circumstances arose, our court held that “review

will be de novo.” State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996). In light of the

recent decision in State v. Binette, ___ S.W.3d ___, No. 1998-00236-SC-R11-CD (Tenn., Knoxville,

Oct. 5, 2000), however, we feel obliged to explore the matter in greater depth.

In Binette, the supreme court restated the standard of appellate review for suppression

issues as had been settled upon in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing in

the trial court is entitled to the strongest legitimate view of the

evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from that evidence. So

long as the greater weight of the evidence supports the trial court’s

findings, those findings shall be upheld. In other words, a trial

court’s findings of fact in a suppression hearing will be upheld unless

the evidence preponderates otherwise.

Id. at 23. The supreme court in Binette then rejected that standard of review for a trial court’s

findings of fact on a motion to suppress when they are based on evidence that does not involve issues

of credibility; the proper standard in that situation is de novo review without a presumption of

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correctness. The supreme court explained that “when a trial court’s findings of fact on a motion to

suppress are based solely on evidence that does not involve issues of credibility, appellate courts are

just as capable to review the evidence and draw their own conclusions.” Binette, slip op. at 3.

The evidence in Binette was a videotape of a vehicle stop, and the suppression issue

was whether the officer had reasonable suspicion for the stop and detention. In this case, the

evidence is a preliminary hearing transcript of the arresting officer’s testimony, and the issue is

whether defendant’s statements to the officer should be suppressed.1 The question becomes whether

the preliminary hearing transcript should be treated as was the Binette videotape. There is language

in Binette suggesting that similar treatment is appropriate.

In the context of workers’ compensation cases, this Court has held

that “where the issues involve expert medical testimony and all the

medical proof is contained in the record by deposition . . . then this

Court may draw its own conclusions about the weight and credibility

of that testimony.” Krick v. City of Lawrenceburg, 945 S.W.2d 709,

712 (Tenn. 1997). The rationale allowing an appellate court to

review such evidence de novo without a presumption of correctness

is clear: the reviewing court is in the same position as the trial court

and is just as capable of reviewing the evidence. See id. Similarly,

when a trial court’s findings of fact on a motion to suppress are based

solely on evidence that does not involve issues of credibility,

appellate courts are just as capable to review the evidence and draw

their own conclusions.

Binette, slip op. at 3. While this is not a workers’ compensation case, our court is in the same

posture as the trial court vis-a-via the preliminary hearing transcript. That is, the trial judge read a

cold record of a hearing over which he did not preside; our court is just as capable of reviewing that

same cold record and drawing our own conclusions.

We are mindful, however, that “in evaluating the correctness of a trial court’s ruling

on a pretrial motion to suppress appellate courts may consider the proof adduced both at the

suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The trial

court in this case did hear the testimony of Officer Gann at trial, and the trial court observed his

demeanor at that time. In the absence of findings, it may be possible for us to assume that the trial

court found the officer to be credible. See Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 775

(Tenn. 2000). That credibility determination is entitled to substantial deference on appeal.

1

The defend ant in this case did not challenge whether probable cause or reasonable suspicion existed

to stop her vehicle. At any rate, it is highly unlikely that any such motion challenging the stop would have succeeded.

As contrasted with the vehicle “weaving” in Binette , Officer G ann testified in this case tha t the defen dant’s ve hicle

crossed the center line of the highway three times, following which he signaled the defendant to pull over and stop.

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Therefore, our review of the denial of the defendant’s suppression motion requires

a dual standard of review.

We begin with the law regarding questioning incident to traffic stops. In Berkemer

v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984), the United States Supreme Court rejected the

notion that all traffic stops are subject to the dictates of Miranda. “[Q]uestioning incident to an

ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged,

and in which the detainee often is aware that questioning will continue until he provides his

interrogators the answers they seek.” Id. at 437, 104 S. Ct. at 3149. In the traffic stop situation,

Miranda protections only come into play if a motorist detained pursuant to a traffic stop is subjected

to treatment that renders him or her "in custody" for practical purposes. Id. at 440, 104 S. Ct. at

3150.

“In custody” has been defined as a "formal arrest or restraint on freedom of movement

of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322-23, 114

S. Ct. 1526, 1528-29 (1994); State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997). The United States

Supreme Court has held that it is appropriate to apply an objective test to determine whether a person

is in custody and therefore entitled to receive Miranda warnings. See Stansbury, 511 U.S. at 323,

114 S. Ct. at 1529; Florida v. Royer, 460 U.S. 491, 501-02, 103 S. Ct. 1319, 1326 (1983). Courts

look to the totality of the circumstances of the interrogation and inquire "how a reasonable man in

the suspect's position would have understood his situation." Berkemer, 468 U.S. at 422, 104 S. Ct.

at 3151; see also Stansbury, 511 U.S. at 323-24, 114 S. Ct. at 1529.

In State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996), the Tennessee Supreme

Court expressly adopted Berkemer’s objective analysis and recognized several nonexclusive factors

to aid in the assessment of whether a reasonable person would consider himself deprived of freedom

of movement to a degree associated with a formal arrest. Relevant factors include the following:

the time and location of the interrogation; the duration and character of the questioning; the officer's

tone of voice and general demeanor; the suspect's method of transportation to the place of

questioning; the number of police officers present; any limitation on movement or other form of

restraint imposed on the suspect during the interrogation; any interactions between the officer and

the suspect, including the words spoken by the officer to the suspect, and the suspect's verbal or

nonverbal responses; the extent to which the suspect is confronted with the law enforcement officer's

suspicions of guilt or evidence of guilt; and finally, the extent to which the suspect is made aware

that he or she is free to refrain from answering questions or to end the interview at will. See id.

From our review of the record, we are of the opinion that the trial court correctly

denied the defendant’s motion to suppress, and we affirm the trial court’s ruling.

At the preliminary hearing, Officer Gann testified that when he approached the

defendant’s vehicle, she asked why she had been stopped. Officer Gann told her about the BOLO

for the vehicle she was driving. Officer Gann stated that when the defendant started speaking, he

noticed an odor of alcohol. At that point, Officer Gann asked her how much she had to drink, and

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the defendant answered that “she had too much rum to drink tonight to drive.” The officer then

requested that she step out of her vehicle and follow him so he could administer field sobriety tests.

At the conclusion of the field sobriety testing, Officer Gann placed her under arrest for driving under

the influence.

At trial, Officer Gann related that he approached the vehicle and asked for the

defendant’s operator’s license. When she turned to speak to him, he noticed an odor of alcohol. The

officer advised the defendant that he had stopped her because of her erratic driving and because of

the earlier BOLO. He asked her to get out of her vehicle and step to the rear of his vehicle. The

officer observed that she stumbled while walking, and he asked her if she had anything to drink

because he detected the odor of alcohol. The defendant told him that “she had probably consumed

too much rum to drive.” He asked her to perform field sobriety tests; after the testing, Officer Gann

determined that she was under the influence of an intoxicant and placed her under arrest.

The slight differences in the officer’s testimony at the preliminary hearing and at trial

are not significant in terms of the suppression issue. Regarding the preliminary hearing testimony,

we have reviewed the transcript de novo, and we independently conclude that the defendant was not

in custody for purposes of Miranda at the time she told the officer that she had consumed too much

rum to drive. We reach the same conclusion when we apply the Odom standard of appellate review

to Officer Gann’s trial testimony.

The facts in this case fit the situation in Berkemer like a well-worn glove. The

defendant in Berkemer was stopped by a highway patrolman as a result of his erratic driving.

Berkemer, 468 U.S. at 423, 104 S. Ct. at 3141. The defendant had trouble standing and failed to

satisfactorily perform a field sobriety test. Id. Although the officer subjectively believed that he

would charge the defendant with a traffic offense, he did not advise the defendant that he was in

custody. Id. The defendant then made incriminating statements to the officer that he had consumed

alcohol and marijuana shortly before being stopped. Id. On those facts, the United States Supreme

Court concluded that the statement was admissible, even though the defendant had not been advised

of his Miranda rights. According to the Supreme Court, on the facts before it, the brief roadside

detention did not constitute "custody" for the purposes of Miranda. Id. at 440, 104 S .Ct. at 3150.

As in Berkemer, the defendant in this case was detained for a short period of time

prior to her arrest. The defendant’s statement about drinking rum was in response to only modest

questioning by the officer who had observed dangerous and erratic driving. Officer Gann was the

only officer involved in the traffic stop. There is no evidence that Officer Gann informed the

defendant, prior to her arrest, that she was not free to leave. Likewise, there is no evidence that

Officer Gann’s tone of voice or demeanor was overbearing or threatening. Also, Officer Gann did

not arrest her until after he administered the field sobriety tests. These considerations, regarded as

relevant to the assessment whether a reasonable person would consider herself to be in custody, all

point to the conclusion that Officer Gann was not constitutionally required to advise the defendant

pursuant to Miranda. Therefore, the defendant’s motion to suppress was properly denied.

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B. Evidentiary objections

The defendant has not raised a constitutional objection to the admissibility of her

second statement or of her proposition to the arresting officer. We note that even had a

constitutional challenge been interposed, it would have failed. Neither the statement nor the

proposition was the product of an unconstitutional custodial interrogation. Indeed, we find no

evidence that there was any interrogation. The defendants’s comments were spontaneous and

unsolicited, and probably for this reason, the defendant has couched her objections in terms of

evidentiary admissibility. See, e.g., State v. Brown, 664 S.W.2d 318, 320 (Tenn. Crim. App. 1984)

(statement given voluntarily without any compelling influences is admissible in evidence whether

or not Miranda warnings are given first); State v. Chambless, 682 S.W.2d 227 (Tenn. Crim. App.

1984) (volunteered statements of any kind are not barred by the Fifth Amendment).

On appeal, the defendant argues based upon Tennessee Rules of Evidence 403 and

Rule 404(b) that her second statement and her subsequent proposition to the officer were improperly

admitted. The defendant never objected at trial, however, on the basis of Rule 404(b) of the

Tennessee Rules of Evidence. The defendant’s written motion in limine on this topic asserted only

that admission of the evidence was unfairly prejudicial. See Tenn. R. Evid. 403. The defendant did

not request a hearing for the trial court to determine if “a material issue existed other than conduct

conforming with a character trait.” See Tenn. R. Evid. 404(b)(1), (b)(2).

“[A] party is bound by the grounds asserted when making an objection. The party

cannot assert a new or different theory to support the objection in the motion for a new trial or in the

appellate court.” State v. Adkisson, 899 S.W.2d 626, 634 (Tenn. Crim. App. 1994); see State v.

Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App.1988) (cannot object on one ground and assert new

basis on appeal). When that happens, as in this case, the party waives the issue. See Adkisson, 899

S.W.2d at 626; State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990); Aucoin, 756

S.W.2d at 715; State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988); State v. Brock, 678

S.W.2d 486, 490 (Tenn. Crim. App. 1984).

The defendant in this case has, however, preserved her Rule 403 objection for our

review. Evidence Rule 403 provides that relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” As noted by the authors of Tennessee Law of Evidence, “The heart of Rule 403 is its

balancing test.” Neil P. Cohen et al., Tennessee Law of Evidence § 403.3, at 151 (3d ed. 1995). The

balancing test articulated in the rule favors admission of evidence, already determined to be relevant.

Id.

We review the trial court’s ruling, which admitted the challenged evidence in this

case, for abuse of discretion. See, e.g., State v. Burns, 979 S.W.2d 276, 294-95 (Tenn. 1998)

(balancing test is committed to the sound discretion of the trial court; its decision will not be

disturbed on appeal absent a showing of clear abuse of discretion); State v. Stephenson, 878 S.W.2d

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530, 542 (Tenn. 1994); State v. Roberson, 988 S.W.2d 690, 695 (Tenn. Crim. App. 1998). No such

showing has been made here.

The gist of the challenged evidence is that the defendant, at first indirectly and then

explicitly, sexually propositioned the arresting officer in an attempt to gain her freedom. The trial

court carefully considered the import of this evidence. The trial court acknowledged that the

evidence was prejudicial, but it also found that the evidence had great probative value going to

consciousness of guilt and to the defendant’s intoxication. We agree with the trial court that, in

effect, the defendant attempted to bribe the officer. We also have no quarrel with the trial court’s

reasoning that individuals who are intoxicated sometimes make nonsensical statements or say things

that a person with a clear mind and who is in control of her faculties would not say.

We are reinforced in our conclusion by the supreme court’s recognition that

circumstances surrounding a defendant’s arrest are “peculiarly relevant.” Marable v. State, 313

S.W.2d 451, 459 (Tenn. 1958).

The actions and behavior of accused when charged with the crime, or

when confronted with the consequences . . . are peculiarly relevant.

In receiving evidence of this kind, it is not easy, if at all possible, for

courts to draw any line segregating those acts which to some minds

may seen significant of guilt from those which are irrelevant because

justifying no such inference. Any ex post facto indication by accused

of a desire to evade prosecution may be shown as one of series of

circumstances from which guilt may be inferred.

Id.; see also State v. Zagorski, 701 S.W.2d 808, 813 (Tenn. 1985) (defendant rammed police car and

opened fire on officers; his conduct at the time of capture provided relevant circumstances from

which jury could infer guilt); State v. Matthew Douglas Cox, No. E1999-00351-CCA-R3-CD, slip

op. at 19 (Tenn. Crim. App., Knoxville, Oct. 20, 2000) (applying Marable and concluding that trial

court did not abuse its discretion in admitting testimony concerning circumstances of defendant’s

arrest); State v. Braggs, 604 S.W.2d 883, 886 (Tenn. Crim. App. 1980) (defendant’s attempt to hide

in basement to avoid arrest was relevant to show consciousness of guilt).

Under the circumstances in this case, we are unable to conclude that the trial court

abused its discretion in allowing this evidence to be admitted.

III. Prosecutorial Misconduct

In her next issue, the defendant complains that the state engaged in improper closing

argument, which amounted to prosecutorial misconduct. The state led off its closing with the first

complained-of argument.

Thank you, Your Honor. May it please the Court and ladies

and gentlemen of the jury. I suggest to you, ladies and gentlemen,

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that what Mr. Lee said regarding Defendant’s state and all this she

was ill and hormone malarkey, besides being offensive, is malarkey.

The defendant characterizes this argument as intemperate and improper.

The second complained-of argument occurred during the state’s rebuttal closing.

The testimony that they give, the State – the facts that come

from her husband are just as unreasonable, just as improbable. For

instance, the business about spilling the drink. First of all, the time

isn’t right. If somebody mixes some alcohol and some Coke and

spills it on you and then an hour later, I submit you’re probably not

going to – if you smell like anything, you’re going to smell like Coke.

Secondly, you’re probably not going to smell like anything.

The defendant alleges that no evidence supported this argument and that it violated due process.

It is appropriate to note at the outset that the defendant did not contemporaneously

object to any of the comments of which she now complains, although she did raise the issue in her

motion for new trial. The defendant’s failure to object would ordinarily constitute waiver of the

issue. See Tenn. R. App. P. 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton,

10 S.W.3d 229, 234 (Tenn. Crim. App. 1999). In the interest of justice, however, we will consider

the issue.

The question here is whether the prosecutor's arguments amounted to prosecutorial

misconduct. To prevail on such a claim, the defendant must show that the argument was so

inflammatory or the conduct so improper that it affected the verdict to her or his detriment. See

Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); State v. Gray, 960 S.W.2d 598,

609 (Tenn. Crim. App. 1997). On appellate review, the court should “consider several factors

including the intent of the prosecutor, the curative measures which were undertaken by the court, the

improper conduct viewed in context and in light of the facts and circumstances of the case, the

cumulative effect of the remarks with any other errors in the record, and the relative strength or

weakness of the case.” Gray, 960 S.W.2d at 609; see also Judge v. State, 539 S.W.2d 340, 344

(Tenn. Crim. App. 1976). In addition, we must keep in mind that closing argument is subject to the

trial court’s discretionary control. See State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).

As a general proposition, closing argument must be temperate, predicated upon

evidence introduced during the trial, and pertinent to the issues on trial. See State v. Sutton, 562

S.W.2d 820, 823 (Tenn. 1978). The state is more limited in its prerogative due to the prosecutor's

role as a seeker of justice, rather than a mere advocate. See Coker v. State, 911 S.W.2d 357, 368

(Tenn. Crim. App. 1995).

We have carefully studied the comments made by the prosecution. The tone of the

prosecutor's overall argument was that of commending the evidence to the jury and that the jury

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should make its own decision as the trier of fact about the credibility of the testimony of the

defendant’s husband. The credibility of the husband was an important issue about which the state

deserved the ability to comment upon within bounds. The “malarkey” remark strikes us as sarcastic,

but oratorical emphasis can include the use of sarcasm to make a relevant point. See State v.

Fredrick Sledge, No. 02C01-9405-CR-00089, slip op. at 48 (Tenn. Crim. App., Jackson, Nov. 25,

1997), aff’d other grounds, --- S.W.3d ---, No. W1994-00005-SC-R11-DD (Tenn., Mar. 20, 2000).

Additionally, the comment about how a person would smell after having a drink spilled on her was

nothing more than argument that the jury should consider the husband’s testimony in light of human

experience and common sense; such argument is not improper. See generally State v. Brown, 795

S.W.2d 689, 696 (Tenn. Crim. App. 1990) (upholding as proper a prosecutor’s closing argument that

“the jury should consider the evidence in light of human experience and common sense”).

Consequently, we fail to see any misconduct with respect to these portions of the

state’s closing argument.

IV. Reckless Driving

The defendant’s grievance that it was error not to charge the jury with the lesser

offense of reckless driving need not detain us long. Nothing in the record suggests that the defendant

requested jury instructions on lesser-included offenses for driving under the influence. We recognize

that Code section 40-18-110(a) places an affirmative duty on a trial court regardless whether the

defendant has made the request, Tenn. Code Ann. § 40-18-110(a) (1997); nevertheless, Rule 3 of the

Tennessee Rules of Appellate Procedure still applies and is specific that “in all cases tried by a jury,

no issue presented for review shall be predicated upon error in . . . jury instructions granted or

refused, . . . unless the same was specifically stated in a motion for a new trial; otherwise such issues

will be treated as waived,” Tenn. R. App. P. 3(e). The defendant in this case failed to include this

issue in her new trial motion, although she has raised it on appeal.

Moreover, plain error does not avail the defendant on this issue. Reckless driving is

not, at any rate, a lesser-included offense of driving under the influence.2 See State v. Burns, 6

2

In State v. Burns, the supreme court adopted, insofar as it is relevant here, the following test for

determining what constitutes a lesser-included offense:

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory elem ent or eleme nts

establishing

(1) a different mental state indicating a lesser kind of culpability; and/or

(2) a less serious ha rm or risk of ha rm to the sam e person, p roperty or p ublic interest; . . . .

(continu ed...)

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S.W.3d 453 (Tenn. 1999); see also, State v. Lawrence, 995 S.W.2d 142, 145 (Tenn. Crim. App.

1998); Fournier v. State, 945 S.W.2d 766, 769 (Tenn. Crim. App. 1996); Ray v. State, 563 S.W.2d

218, 219 (Tenn. Crim. App. 1977). Consequently, it was not error, plain or otherwise, to fail to

instruct on reckless driving in this case.

V. Sentencing

In the defendant’s final issue, she proposes that she should have been sentenced to

minimum fines and time. According to the defendant, she had no prior criminal history, had physical

and mental problems, and was capable of rehabilitation, thereby creating the presumption that she

was a logical candidate for probation. She further offers, in conclusory fashion, that she was an

especially mitigated offender, and for that reason she should have been sentenced to minimum fines

and time served.

The defendant does not specify what she means by being sentenced to “minimum

time.” In light of the mandatory minimum 48 hours of confinement for first offense DUI, the

defendant is not eligible for a completely probated sentence. We interpret the complaint, therefore,

to stem from the trial court’s order that she is to serve eight days incarcerated before being released

to serve the balance of her sentence of eleven months, 29 days on supervised probation.

The trial court sentenced the defendant immediately following the jury’s verdict. The

trial court noted that the degree of the defendant’s intoxication and the defendant’s attempt to

influence the officer were the two considerations that justified more than the mandatory minimum

48 hours confinement.

In felony sentencing, the trial court has an affirmative duty to state in the record,

either orally or in writing, which enhancement and mitigating factors it found and its findings of fact.

Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code Ann. § 40-35-210(f) (Supp.1998); State v.

2

(...continued)

State v. Burns, 6 S.W .3d 453 , 466-67 (Tenn. 1 999).

In 1997 the offense of DUI required (a) any per son to drive or be in physical control of a vehicle; (b)

on any public road, highway, street, or alley, or on the premises of any shopping center, trailer park, apartment complex,

or other place generally frequented by the public at large; (c) while under the influence of any intoxicant, marijuana,

narcotic drug, or drug producing stimulating effects on the central nervous system. Tenn. Code Ann. § 55-10-401 (1997

Supp.). The offense of reckless driving required (a) any person to drive any vehicle; (b) in willful or wanton disregard

for the safety of persons or property. Tenn. Code An n. § 55-10-205 (199 3).

DUI lacks the ele ment o f willful and wanton disregard for safety, while reckless driving lacks the

element of being under the influence of an intoxicant. Part (a) of the Burns test, therefore, is not satisfied. Nor is part

(b) of the Burns test applicab le. The reckless driving mental state of “willful” or “wanton” does not indicate a lesser kind

of culpability, and the elements of reckless driving do not establish a less serious harm or risk of harm.

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Troutman, 979 S.W.2d 271, 274 (Tenn. 1998); State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim.

App. 1999). By contrast, the misdemeanor sentencing statute does not require explicit findings; it

specifies only that the trial court “consider” the enhancement and mitigating factors when calculating

the percentage of the sentence to be served "in actual confinement" prior to "consideration for work

release, furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. § 40-35-302(d)

(1997); Troutman, 979 S.W.2d at 274; Russell, 10 S.W.3d at 278. The statutory scheme is designed

to provide the trial court with continuing jurisdiction in the misdemeanor case and a wide latitude

of flexibility. Additionally, the misdemeanant, unlike the felon, is not entitled to the presumption

of a minimum sentence. See State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

For misdemeanor sentencing, the trial court retains the authority to place the

defendant on probation either immediately or after a term of periodic or continuous confinement.

Tenn Code Ann. § 40-35-302(e) (1997). In determining whether to grant probation, the trial court

should consider the nature and circumstances of the offense, the defendant’s criminal record and

potential for rehabilitation, the defendant’s background and social history, present condition,

including physical and mental condition, the deterrent effect on other criminal activity, and the

likelihood that probation is in the best interests of both the public and the defendant. See, e.g.,

Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974); State v. Dykes, 803 S.W.2d 250, 259-60 (Tenn.

Crim. App. 1990); State v. Tidwell, No. 0C01-9807-CC-00288, slip op. at 3 (Tenn. Crim. App.,

Nashville, Jun. 30, 1999), perm. app. denied (Tenn. Jan. 3, 2000).

As indicated, a trial court is not required to make explicit findings in misdemeanor

cases. This is not to say that a trial court has unbridled discretion in misdemeanor sentencing. In

this case, the trial court -- although not obliged to do so -- gave two reasons why it was ordering the

defendant to serve more than the 48-hour minimum period of incarceration. We have examined

those reasons.

The first reason cited by the trial court was the defendant’s degree of intoxication.

Degree of intoxication goes to the nature and circumstances of the offense, and it may be legitimate

and influential consideration regarding probation. The problem in this case, however, is that while

the evidence was clearly sufficient to support the conviction for driving under the influence, the

degree of the defendant’s intoxication cannot be determined from the record. Consequently, under

the facts of this case (or the lack thereof) the trial court erred in relying on this reason.

The second reason that the trial court mentioned was the defendant’s attempt to

influence the officer; we assume that the trial court was referring to the sexual proposition that the

defendant made to the arresting officer. The defendant’s attempt to corrupt the criminal justice

system is certainly worthy of consideration. Just as a defendant’s truthfulness at a trial or sentencing

is a factor that may be considered, see Dykes, 803 S.W.2d at 259, the defendant’s behavior in this

case demeans the process of justice that we rely on to safeguard our rights and privileges. The

defendant’s behavior was a circumstance of the offense which warrants the trial court’s concern.

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On balance, we are not persuaded that the trial court exceeded the “wide latitude of

flexibility,” Creasy, 885 S.W.2d at 832, that is afforded in the misdemeanor arena, and we will not

disturb the order requiring a short term of confinement.

Before leaving this subject, however, we must correct a matter concerning the

judgment form. The judgment form is blank as to the percentage of the sentence, which the

defendant shall serve and after which the defendant is eligible for work release, furlough, trusty

status, and related rehabilitative programs. See Tenn. Code Ann. § 40-35-302(d) (1997). The trial

court mentioned thirty percent (30%) when it sentenced the defendant following the jury’s verdict.

Through some oversight, that percentage figure did not find its way onto the judgment form. The

judgment is hereby amended to show that the defendant shall serve 30 percent of her sentence before

she is eligible for available rehabilitative programs. The defendant, therefore, is sentenced to eleven

months, 29 days. She is eligible for available rehabilitative programs after serving 30 percent of her

sentence. The defendant is ordered to serve eight days of her sentence in confinement, after which

she shall be placed on supervised probation for the balance of her sentence.

We now come to the last sentencing issue: the maximum $1,500 fine which was

assessed by the jury and then imposed without further comment by the trial court. In State v. Bryant,

805 S.W.2d 762, 766-67 (Tenn. 1991), the supreme court held that the constitution did not prohibit

appellate review of fines. See Tenn. Const. art. VI, § 14. Fines are generally assessed by the jury

unless the defendant waives this constitutional protection. Tenn. Code Ann. § 40-35-301 (1997);

State v. Mahoney, 874 S.W.2d 627, 630 (Tenn. Crim. App. 1993).

“Although the jury is to ‘fix’ the amount of the fine and report it with a guilty verdict,

it is the trial court that is obligated to impose a fine, if any – not to exceed that fixed by the jury –

as part of the sentence.” State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997); see Tenn.

Code Ann. § 40-35-301(b) (1997). The trial court's imposition of a fine is to be guided by the factors

of the 1989 Sentencing Act, including “‘the defendant’s ability to pay that fine, and other factors of

judgment involved in setting the total sentence.’” State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim.

App. 1997) (quoting State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993)). A trial

court, in other words, may not abdicate its judicial responsibility for imposing a fine by parroting

whatever fine is fixed by the jury. See Blevins, 968 S.W.2d at 895.

A defendant's ability to pay is usually a factor in the establishment of fines, albeit not

automatically “the” controlling factor. Tenn. Code Ann. § 40-35-207(a)(7) (1997); see State v.

Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993) (a defendant's ability to pay "is not

necessarily a controlling [factor]"). When, as in this case, the trial court fails to set forth any

findings of fact concerning the defendant's ability to pay a fine, our review is de novo without a

presumption of correctness. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Lewis,

978 S.W.2d 558, 567 (Tenn. Crim. App. 1997) (no findings by trial court regarding fine imposed

for misdemeanor, simple possession of marijuana conviction); State v. Alvarado, 961 S.W.2d 136,

153 (Tenn. Crim. App. 1996) (no findings by trial court regarding fine imposed for felony

convictions).

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The trial court in this case failed to articulate the basis for imposing the maximum

fine, which was the amount set by the jury. The defendant, though, did not request any special

finding by the trial court; nor did she offer any relevant evidence demonstrating why the fine was

excessive. When the defendant filed her new trial motion, she raised a point that the fine was

excessive, but again no specifics and no relevant evidence of excessiveness were offered. We also

can find no evidence that the defendant ever filed with the trial court a Rule 35, Tenn. R. Crim. P.

35, motion for reduction of the fine portion of the sentence. We simply have no evidence before us

in the record establishing why the fine is excessive, and it is the defendant’s burden on appeal to

make that showing. She has not done so, and we affirm the trial court’s acceptance of the fine

recommended by the jury. See Alvarado, 961 S.W.2d at 153 (defendant has burden on appeal).

VI. Conclusion

For the foregoing reasons, the trial court’s judgment is affirmed. The trial court’s

judgment shall be modified to reflect the percentage of service required for this misdemeanor

sentence.

__________________________________________

JAMES CURWOOD WITT, JR., JUDGE

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