State of Tennessee v. Terry William Smith ( 2020 )

09/03/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 29, 2020
STATE OF TENNESSEE v. TERRY WILLIAM SMITH
Appeal from the Criminal Court for Hamilton County
No. 299659 Don Poole, Judge
No. E2019-01572-CCA-R3-CD
The defendant, Terry William Smith, appeals his 2019 Hamilton County Criminal Court
jury convictions of speeding, failure to obey a traffic control signal, reckless endangerment,
evading arrest, violating the open container law, and driving under the influence, arguing
that the evidence was insufficient to support some of his convictions and that the trial court
erred by ordering a sentence of split confinement. We affirm the defendant’s convictions,
the imposition of a two-year effective sentence, and the trial court’s decision to order split
confinement. Because the confinement term of the split confinement sentence exceeds that
allowed under the terms of Code section 40-35-501(a)(3), we modify the term of
confinement and remand the case for the entry of corrected judgment forms reflecting the
modified sentence and the proper place of confinement.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed as Modified;
Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.
Mike Acuff, Chattanooga, Tennessee, for the appellant, Terry William Smith.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Chris Post, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Hamilton County Grand Jury charged the defendant with one count each
of speeding, failure to maintain lane, failure to obey a traffic control device, reckless
endangerment, evading arrest, violating the open container law, driving under the influence
(“DUI”), and driving with a blood alcohol concentration in excess of .08 percent (“DUI
per se”) for his actions that precipitated a traffic stop on November 26, 2015.
At the February 2019 trial, Chattanooga Police Department (“CPD”) Officer
Jeffrey Buckner testified that at approximately 1:00 a.m. on November 26, 2015, he “was
sitting on I-75 southbound” at the “nine mile marker” using his radar to monitor the speed
of the passing vehicles when the rear radar alerted him to the fact that an approaching
vehicle was traveling at 110 miles per hour. He looked over his shoulder and observed “a
black sedan [traveling] at a high speed.” As the black sedan approached his patrol car, “it
did start to slow down” and was traveling at “[a]round 80 miles an hour” as it passed him.
Officer Buckner then “began to try to catch up to the vehicle,” which required him “to
accelerate as fast as I could because I was already coming from a dead stop to catch up to
this vehicle.” He recalled that he reached a speed of 125 miles per hour in his effort to
catch the vehicle.
As Officer Buckner “began to get closer,” he initiated his emergency
equipment, and the sedan exited “at Bonny Oaks, Exit 7.” He testified that he saw “the
vehicle taking the exit curving to the right” and then saw it “brush against that wall and
come back into its lane” before continuing “straight on the exit ramp.” At the end of the
exit ramp, Officer Buckner observed that “we did have a red light facing us, Bonny Oaks
had a green light on the opposing traffic.” He also observed “a vehicle coming on Bonny
Oaks towards the intersection.” The black sedan “did not make any attempt to stop but
traveled straight through the intersection . . . and actually went straight when there was no
lane for straight travel and took the I-75 southbound entrance ramp and got back on the
interstate.” Because Officer Buckner “felt that this was a maneuver to evade” him, he
decided “to disengage and turn my lights and sirens off because I was in fear of this causing
damage or death to anybody.”
Officer Buckner reactivated his emergency equipment after “watching the
vehicle get back on the interstate,” because he “noticed it was now actually driving in a
different behavior but was actually at a slower speed.” He followed the black sedan onto
the interstate and caught up with it “around the 6.4 mile marker of 75 south.” The driver
“took a prolonged time to pull over.” Officer Buckner testified that he effectuated a “high
risk stop” based upon the driver’s earlier behavior and the fact that his “closest backup was
a ways away.” He called in the stop and requested emergency backup and then “exited but
I stayed at my driver door” with his gun drawn. He used the “PA system to give verbal
commands.” He instructed the driver to exit the vehicle, and the driver eventually did so.
Officer Buckner “instructed him to come to my vehicle and place his hands on the hood of
my vehicle.” Officer Buckner identified the defendant as the driver of the black sedan.
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Officer Buckner testified that, when he made personal contact with the
defendant, he observed that the defendant “did have watery red eyes, he had a smell what’s
commonly associated with alcohol or intoxicant coming from his person and breath.”
Officer Buckner also observed that when the defendant “exited the vehicle he was in a
relaxed state, he was not in alert.” He also observed that the defendant “looked to be a
little unsteady when he exited initially” and when Officer Buckner assisted him into the
patrol car. Officer Buckner placed the defendant in handcuffs, patted him down for
weapons, and placed him in the back of his patrol car. He said that, based upon the
circumstances, he “felt it was better to go ahead and secure him in the vehicle.” Officer
Buckner “viewed an open container of alcohol in the backseat” within arm’s reach of the
driver’s seat. A photograph of that item, “an empty container of Twisted Tea, Hard Ice
Tea” that was still cold when the officer found it, was exhibited to his testimony and
displayed to the jury.
Officer Buckner drove the defendant to the Hamilton County Jail, where he
applied for a search warrant to draw the defendant’s blood. A magistrate signed the
warrant, and a nurse drew the defendant’s blood. Officer Buckner sealed the sample and
placed it “in our property division that takes it up personally to the” Tennessee Bureau of
Investigation (“TBI”) for testing. That testing established that the defendant had a blood
alcohol concentration of .152 percent.
During cross-examination, Officer Buckner acknowledged that, although he
observed “cuts and damage to the rim” of one of the tires on the defendant’s vehicle, he
could not be certain of the age of that damage. He admitted that the defendant told him
that he had issues with back pain. The can of Twisted Tea “was not still in full capacity,
there was a lower volume,” and “it was still cold on the outside of the cup.”
During redirect-examination, Officer Buckner said that, as he transported the
defendant to the jail, he observed that the odor of an alcoholic beverage, which was not
present before the defendant was placed in the patrol car, “did grow stronger.”
CPD Investigator Michael Sharp responded on the scene of the traffic stop
and “pointed out the damage to the front right tire wheel area of the vehicle.”
TBI Special Agent and Forensic Scientist Dawn Sweeney analyzed the blood
sample taken from the defendant on November 26, 2015. Her testing established that the
defendant’s blood “had .152 grams percent of ethyl alcohol.”
Following Agent Sweeney’s testimony, the State rested. After a full Momon
colloquy, the defendant elected not to testify and chose to present no proof.
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Based upon this evidence, the jury convicted the defendant as charged of
speeding, failure to obey a traffic control device, felony reckless endangerment, evading
arrest, violating the open container law, and DUI. The jury acquitted the defendant of
failure to maintain lane and DUI per se. Following a sentencing hearing, the trial court
imposed a total effective sentence of two years to be served as 11 months’ and 29 days’
incarceration followed by supervised probation.
I. Sufficiency
The defendant contends that the evidence was insufficient to support some
of his convictions. Sufficient evidence exists to support a conviction if, after considering
the evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319
(1979); State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Dorantes, 331 S.W.3d at 379. The verdict of the jury resolves any questions concerning
the credibility of the witnesses, the weight and value of the evidence, and the factual issues
raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.
In this case, the defendant challenges the sufficiency of the evidence only
with regard to his convictions of reckless endangerment, evading arrest, and failure to
maintain lane. Because the jury acquitted the defendant of failure to maintain lane, we will
not address the sufficiency of the evidence for that charge.
“A person commits an offense who recklessly engages in conduct that places
or may place another person in imminent danger of death or serious bodily injury.” T.C.A.
§ 39-13-103(a). A person
acts recklessly with respect to circumstances surrounding the
conduct or the result of the conduct when the person is aware
of but consciously disregards a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The
risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as
viewed from the accused person’s standpoint.
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Id. § 39-11-302(c). “Reckless endangerment committed with a deadly weapon is a Class
E felony.” Id. § 39-13-103(b)(2). “An automobile is considered a ‘deadly weapon’” for
purposes of the reckless endangerment statute. State v. Wilson, 211 S.W.3d 714, 719
(Tenn. 2007) (citing State v. Tate, 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995)). In
order “[f]or the threat of death or serious bodily injury to be ‘imminent,’ [a] person must
be placed in a reasonable probability of danger as opposed to a mere possibility of danger.”
State v. Cross, 362 S.W.3d 512, 524-25 (Tenn. 2012) (quoting State v. Goodwin, 143
S.W.3d 771, 777-78 (Tenn. 2004)). The “State may satisfy its burden by demonstrating
that a ‘person or class of persons’ other than the defendant was in the zone of danger,”
which “has been defined as ‘that area in which a reasonable probability exists that the
defendant’s conduct would place others in imminent danger of death or serious bodily
injury if others were present in that zone or area.’” Cross, 362 S.W.3d at 524-25 (quoting
Goodwin, 143 S.W.3d at 778).
“It is unlawful for any person, while operating a motor vehicle on any street,
road, alley or highway in this state, to intentionally flee or attempt to elude any law
enforcement officer, after having received any signal from the officer to bring the vehicle
to a stop.” T.C.A. § 39-16-603(b)(1).
Here, the evidence established that Officer Buckner observed the defendant
traveling at 110 miles per hour on the interstate in Chattanooga. In order to catch up with
the defendant, the officer was forced to accelerate quickly. Officer Buckner activated his
emergency equipment when he caught up to the defendant. The defendant passed other
cars on the interstate before taking the exit ramp at a high rate of speed. He then sped
through a red light, where another vehicle was approaching the intersection, and sped back
onto the interstate, where he continued to drive at a high rate of speed before finally pulling
over. Although Officer Buckner briefly deactivated his emergency equipment, thinking he
would end the chase for the safety of others on the roadway, he reactivated the equipment
after realizing that the defendant had slowed somewhat. The defendant continued to drive
for some distance before pulling over. Officer Buckner testified that the defendant was
unsteady on his feet and smelled of alcohol. Forensic testing established that the defendant
had a blood alcohol concentration that was nearly twice the legal limit. Contrary to the
defendant’s suggestion, the State was not required to show that other drivers were forced
to take evasive action to support a conviction of either reckless endangerment or evading
arrest. The defendant drove drunk at an extremely high rate of speed and barreled through
a red light in an effort to escape Officer Buckner, conduct that was more than sufficient to
support the defendant’s convictions of felony reckless endangerment and felony evading
arrest.
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II. Sentencing
At the sentencing hearing, the defendant testified that he suffered serious
injuries in an accident in October 2008 and that he had been unable to work since that
accident. The defendant admitted that he had a drinking problem that began in 2013
following the dissolution of his marriage. He said that he “went to a detox, I think it was
seven or eight days,” but he was not approved for an extended in-patient stay at that time.
In addition, he “tried to quit on my own which is very dangerous and I ended up in the
emergency room” after he “almost died.” He conceded that, at the time of the sentencing
hearing, he continued to “drink daily.” The defendant predicted that, if forced to serve a
sentence of confinement, “It wouldn’t be good. I would be sick and end up like I was
before when I tried to quit.” The defendant, who lived in Indiana at the time of the hearing,
said that he had “been in contact with a lady with rehab” in Ohio that was “the only place
that I could get where my insurance would cover me for a twenty-one to twenty-eight day
program.” He admitted that he had been convicted of assault in Sevier County and placed
on probation. As a result of that conviction, he attended counseling for anger management.
The defendant asked the court to allow him to “do the rehab part . . . and let it be part of
the sentencing or whatever and because of the danger that I could go through” during the
detoxification process.
During cross-examination, the defendant admitted that he had two previous
convictions of reckless driving and that he was serving a sentence of probation for a Sevier
County assault conviction at the time of the sentencing hearing. He conceded that he was
the subject of two orders of protection at the time of the sentencing hearing. He
acknowledged that he had previously been arrested for but not formally charged with DUI.
The defendant admitted having consumed alcohol on the day before the sentencing hearing.
He said that he had previously attended an alcohol rehabilitation program in 2013.
Upon questioning by the trial court, the defendant acknowledged that he had
contacted the rehabilitation program he wanted to attend only two weeks prior to the
sentencing hearing. The defendant also said that Officer Buckner was wrong when he said
that the defendant was driving at 110 miles per hour. He acknowledged, however, that he
“was doing over the speed limit.”
The defendant’s 18-year-old daughter, Pamela Luttrell, testified that, before
the defendant moved to Indiana, the two were close. She said that the defendant was also
close with her two half-siblings. She said that the defendant called her daily.
At the conclusion of the hearing, the trial court found in mitigation that the
defendant suffered serious injuries in 2008, that he was on disability, and that he had a
good relationship with his children. The court enhanced the sentence based upon its finding
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that the defendant had a previous history “for fairly serious misdemeanor convictions.”
See T.C.A. § 40-35-114(1). The trial court applied enhancement factor 10, that the
defendant had no hesitation about committing a crime when the risk to human life was
high, to the defendant’s evading arrest conviction “and other misdemeanors but not the
reckless endangerment.” The court said that “it would have been preferable” for the
defendant to seek help for his alcohol addiction prior to the offenses. The court found that
“based on the very, very reckless conduct on I-75[,] . . . he should be confined for a period
of time.” The court found that a sentence of split confinement was warranted and,
accordingly, imposed the following sentences:
Speeding 30 days to serve
Failure to obey a traffic control device 30 days to serve
Reckless endangerment Two years, suspended to 11 months’ and
29 days’ incarceration followed by
probation
Evading arrest Two years, suspended to 11 months’ and
29 days’ incarceration followed by
probation
Violating the open container law 30 days to serve
DUI 11 months and 29 days to serve at 50
percent
The court aligned all the sentences concurrently, for a total effective sentence of two years
to be served as 11 months’ and 29 days’ incarceration followed by probation. Despite that
the trial court specifically noted that a sentence to the Department of Correction (“TDOC”)
was not appropriate in this case, the judgment forms reflect the place of incarceration for
the split confinement sentence as TDOC.
Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are
“required under the 2005 amendments to ‘place on the record, either orally or in writing,
what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, in order to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 698-
99 (quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be
upheld so long as it is within the appropriate range and the record demonstrates that the
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sentence is otherwise in compliance with the purposes and principles listed by statute.” Id.
at 709.
The defendant challenges only the manner of service of his sentence, arguing
that the trial court erred by ordering that he serve a period of confinement. In our view, no
error attends the trial court’s decision that an alternative sentence in the form of split
confinement was appropriate in this case. We do, however, perceive error in the length of
the period of incarceration imposed in this case as well as the imposition of a sentence to
TDOC.
Code section 40-36-306 provides that defendants “receiving probation may
be required to serve a portion of the sentence in continuous confinement for up to one (1)
year in the local jail or workhouse, with probation for a period of time up to and including
the statutory maximum time for the class of the conviction offense.” T.C.A. § 40-35-
306(a). Although this section permits the imposition of a period of continuous confinement
up to one year, Code section 40-35-501 provides that, “[n]otwithstanding any other
provision of law, inmates with felony sentences of two (2) years or less shall have the
remainder of their original sentence suspended upon reaching their release eligibility date.”
Id. § 40-35-501(a)(3). “Release eligibility for each defendant sentenced as a Range I
standard offender shall occur after service of thirty percent (30%) of the actual sentence
imposed less sentence credits earned and retained by the defendant.” Id. § 40-35-501(c).
Our supreme court has held that, “in sentences of two years or less, defendants have more
than a mere hope of release. Instead, they have a right, based on [Code section 40-35-
501(a)(3)], to have the remainder of their sentence suspended upon reaching their release
eligibility date.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “A sentence of split
confinement may not be imposed which circumvents the statutory release eligibility date.”
Jonathan Thornton v. State, No. E2003-00393-CCA-R8-PC, slip op. at 3 (Tenn. Crim.
App., Knoxville, Mar. 17, 2003) (citing State v. Stephen Michael Ware, No. E2000-01952-
CCA-R3-CD (Tenn. Crim. App., Knoxville, Aug. 7, 2001)); State v. David Wayne
Fountain, No. E2004-01226-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Knoxville, June
28, 2005) (“This court has consistently held that a confinement term may not exceed the
release eligibility date for felony sentences of two years or less.” (citations omitted)).
In this case, the defendant received concurrent Range I sentences of two
years for each of his Class E felony convictions. The defendant would reach his release
eligibility date on his two-year effective sentence after serving 7.2 months, or seven months
and six days, see T.C.A. § 40-35-502(a)(2) (converting fractions of months into days), of
continuous confinement. Consequently, the period of continuous confinement imposed in
this case exceeds the period of continuous confinement permitted by Code section 40-35-
501(a)(3), and the sentence must be modified. Because the record otherwise supports the
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trial court’s decision that a period of confinement was warranted in this case, we modify
that term of confinement to seven months and six days.
Additionally, as noted above, the judgment forms indicate that the defendant
was sentenced to TDOC. Code section 40-35-314 provides, however, that when “periodic
or split confinement not to exceed one (1) year” is directed as part of a sentence of eight
years or less, “the court shall designate the place of confinement as a local jail or
workhouse.” T.C.A. § 40-35-314(a). Accordingly, the case must be remanded for the
entry of corrected judgments reflecting that the place of incarceration is the local jail or
workhouse.
III. Conclusion
Because the State presented sufficient evidence to support each of the
defendant’s convictions, we affirm those convictions. Because the trial court erroneously
imposed a term of confinement that exceeds the defendant’s release eligibility date, the
term of confinement is modified to seven months and six days. Finally, the judgment forms
for the defendant’s convictions of reckless endangerment and evading arrest must be
corrected to reflect the place of confinement as the local jail or workhouse.
_________________________________
JAMES CURWOOD WITT, JR.
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