IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 26, 2010

STATE OF TENNESSEE v. ROBERT THOMAS REED

Appeal from the Circuit Court for Sevier County

No. 11398-11 Richard R. Vance, Judge

No. E2009-00629-CCA-R3-CD Filed June 22, 2010

The Defendant, Robert Thomas Reed, was convicted of driving under the influence (DUI)

(first offense), a Class A misdemeanor, and driving after having been declared a motor

vehicle habitual offender (MVHO), a Class E felony. Following a sentencing hearing, the

Defendant was sentenced as a Range I offender to two years with service of six months in

the county jail and the balance to be served on probation for the MVHO conviction and a

concurrentsentence of eleven months, twenty-nine days suspended to six monthsfor the DUI

conviction. On appeal, the Defendant challenges the sufficiency of the evidence that formed

the basis of both convictions. Following our review, we affirm the judgments of the trial

court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and NORMA MCGEE OGLE, J., joined.

Edward Cantrell Miller, District Public Defender; and Amber D. Hass, Assistant Public

Defender, attorneys for appellant, Robert Thomas Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; James B. Dunn, District Attorney General; George C. Ioannides, Assistant District

Attorney General, attorneys for appellee, State of Tennessee.

OPINION

Officer Blaine Lewis of the Sevier County Sheriff’s Department testified that he

received a call from the dispatcher on April 26, 2006 at 2:57 p.m. regarding an accident on
Birds Creek Road. He testified that he arrived at the location of the accident at 3:03 p.m. and

that the Defendant’s vehicle was off the right side of the road in a field. The Defendant was

“at the car in the field” by himself. There were no other cars or people present. The road

was wet from rain, but it was a “nice day” without adverse weather conditions.

Officer Lewis stated that when he approached the Defendant and started talking to

him, he noticed that the Defendant’s breath smelled like alcohol and that the Defendant was

unsteady on his feet. The Defendant told Officer Lewis that he was hurt and that he had hit

his left knee on the steering wheel. In response, Officer Lewis called for an ambulance.

However, the Defendant refused medical attention.

Officer Lewis said that he did not ask the Defendant to perform any field sobriety tests

because of the Defendant’s injury. Also, the location of the accident “was not a safe place

to perform field sobriety tests.” Officer Lewis stated that he noticed an open beer can “in the

center console of [the Defendant’s] vehicle.” When asked about the beer can, the Defendant

told Officer Lewis that he had been drinking and that he “had drunk a few that day.” From

his observations at the scene of the accident and the Defendant’s answers to his questions,

Officer Lewis determined that the Defendant “was under the influence of alcohol.”

Officer Lewis testified that after talking with the Defendant, he called the dispatcher,

who told him that the Defendant was a motor vehicle habitual offender and that the

Defendant’s driver’s license was revoked. Officer Lewis said that he also obtained a

certified copy of the Defendant’s driving history, which also reflected that the Defendant was

a motor vehicle habitual offender. The Defendant’s driving history was introduced into

evidence.

Officer Lewis said that he was unable to transport the Defendant to the emergency

room or the jail because as a “K-9 officer,” his dog was in the back seat of his vehicle.

Officer Lewis testified that he was able to call another deputy, who transported the

Defendant to the jail. Once at the jail, the Defendant requested to go to the hospital. The

deputy complied, and Officer Lewis met the Defendant at the hospital. Officer Lewis said

that when the Defendant was at the hospital, the Defendant “consented to a blood alcohol

test” after Officer Lewis read “him his rights under the implied consent law.”

After a nurse at the hospital drew blood from the Defendant’s arm, the blood alcohol

kit was sent to the Tennessee Bureau of Investigation for testing. Approximately one month

later, the test results were sent to Officer Lewis. The test results reflect that the Defendant’s

blood alcohol content was 0.28 at the time the Defendant’s blood was collected. The test

results and implied consent form were also introduced into evidence.

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Officer Lewis said that the Defendant never told him that somebody else was driving

the car or that there were any other passengers. Officer Lewis testified that he believed that

the Defendant was “very intoxicated” and that the Defendant should not have been driving

that day.

On cross-examination, Officer Lewis admitted that he did not know who called the

dispatcher to report the accident; however, he knew that the call was received at 2:55 p.m.

Officer Lewis reiterated that the Defendant was outside the car when he arrived at the scene

and that the curvy county road was wet. Officer Lewis conceded that it was “not outside the

realm of possibility” that the Defendant may have “shifted around in [the] car” when the

accident occurred, thereby hitting his left knee on the steering wheel.

On re-direct examination, Officer Lewis stated that he was able to determine that the

Defendant owned the car. He said that the accident occurred when the vehicle “came around

the curve and . . . went off into the ditch and then down a little embankment into a field.”

The car was “stuck in the field,” and the “passenger’s side and the front of the vehicle was

[moderately] damaged.” The vehicle was not upside down and was “facing in the direction

in which it came from.” The open beer can in the center console was not spilled as a result

of the accident, and “[t]here wasn’t anything turned over” in the vehicle. Officer Lewis did

not see anything in the car that indicated that another person was present.

ANALYSIS

The Defendant contends that the evidence was insufficient to sustain his convictions.

The Defendant admits that he is a habitual motor vehicle offender and that he was intoxicated

when Deputy Lewis found him on the side of the road. The Defendant contends that the

State failed to prove that the Defendant ever had physical control of the automobile, thereby

invalidating both convictions. The State responds that the evidence was sufficient to sustain

both convictions.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal 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 v. Virginia, 443 U.S. 307, 319 (1979). The court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the state.

See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and

the weight and value to be given to evidence were resolved by the jury. See State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the presumption of

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innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has the

burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.;

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of

guilt based upon direct evidence, circumstantial evidence, or a combination of [both] direct

and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.

App. 1999).

In this case, there was no direct evidence that the Defendant was driving the vehicle.

However, “[i]t is well established that circumstantial evidence alone may be sufficient to

support a conviction.” State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App. 1999)

(citation omitted). To warrant a criminal conviction on circumstantial evidence alone, the

evidence “must be so strong and cogent as to exclude every other reasonable hypothesis save

the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 470

S.W.2d 610, 612 (1971). This court has held that the evidence “must be not only consistent

with the guilt of the accused but it must also be inconsistent with his innocence and must

exclude every other reasonable theory or hypothesis except that of guilt.” Pruitt v. State, 460

S.W.2d 385, 390 (1970). In other words, “[a] web of guilt must be woven around the

defendant from which he cannot escape and from which facts and circumstances the jury

could draw no other reasonable inference save the guilt of the defendant beyond a reasonable

doubt.” Crawford, 470 S.W.2d at 613. “The inferences to be drawn from such evidence, and

the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457

(1958) (citation omitted).

The Defendant was convicted of DUI in violation Tennessee Code Annotated section

55-10-401. The statute states, in pertinent part:

(a) It is unlawful for any person to drive or to be 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, or while on the premises of any shopping center, trailer

park or any apartment house complex, or any other premises

which is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant,

marijuana, narcotic drug, or drug producing

stimulating effects on the central nervous system;

or

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(2) The alcohol concentration in the person’s

blood or breath is eight-hundredths of one percent

(.08%) or more.

Tenn. Code Ann. § 55-10-401(a)(1). The Defendant was also convicted of driving after

having been declared a MVHO in violation of Tennessee Code Annotated section 55-10-616.

The statute states, in pertinent part:

(a) It is unlawful for any person to operate any motor vehicle in

this state while the judgment or order of the court prohibiting the

operation remains in effect.

(b) Any person found to be an habitual motor vehicle offender

under this part who thereafter is convicted of operating a motor

vehicle in this state while the judgment or order of the court

prohibiting such operation is in effect commits a Class E felony.

Tenn. Code Annotated § 55-10-616(a), (b). For a defendant to be convicted of either of these

offenses, the State must prove beyond a reasonable doubt that the Defendant was actually

driving a vehicle (or in the case of the DUI statute, was driving or in physical control of a

vehicle) at the time the violation allegedly occurred.

In determining whether the Defendant was in physical control of the vehicle we

consider “the location of the [D]efendant in relation to the vehicle, the whereabouts of the

ignition key, whether the motor was running, the [D]efendant’s ability, but for his

intoxication, to direct the use or non-use of the vehicle, or the extent to which the vehicle

itself is capable of being operated or moved under its own power or otherwise.” State v.

Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993). “The same considerations can be used as

circumstantial evidence that the [D]efendant had been driving the vehicle.” Id. We also note

that this court has held that in DUI cases, a police officer’s testimony, by itself, is sufficient

evidence to convict a defendant of driving under the influence. See State v. Vasser, 870

S.W.2d 543, 544 (Tenn. Crim. App. 1993) (stating that the State did not need more than the

deputy’s testimony to prove its DUI case).

While Officer Lewis did not provide any information regarding the location of the car

keys or whether the engine was running, Officer Lewis testified that the Defendant was

standing outside his vehicle and complaining of an injury to his left knee resulting from a

single car accident. Officer Lewis testified that the vehicle belonged to the Defendant. He

said that the vehicle was damaged on the passenger’s side and the front of the vehicle and

that the vehicle was stuck in the field. However, the vehicle was not upside down.

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According to Officer Lewis, the Defendant did not mention that another person was driving

the vehicle or even that another person was with him in the accident. No other persons were

present at the scene of the accident. Accordingly, we conclude that there was sufficient

evidence to conclude that the Defendant was driving the vehicle at the time of the accident.

Officer Lewis also said that the Defendant appeared intoxicated and that the

Defendant’s blood alcohol content was 0.28, well above the legal limit. The Defendant told

Officer Lewis that he had consumed a few beers that day, and Officer Lewis observed one

beer in the center console. Accordingly, we also conclude that there was sufficient evidence

to conclude that the Defendant was under the influence of an intoxicant while he was driving

the vehicle and that there was sufficient evidence to sustain a conviction for DUI and

MVHO.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

________________________________

D. KELLY THOMAS, JR., JUDGE

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