### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ja nuary 27, 200 4
STATE OF TENNESS EE v . RUSSELL K. BOW MAN
Appeal f romthe Circ uit Court for P utnam C ounty No. 02-0545 John J. Maddu x, Jr., Judge

No. M2003- 00257-CCA -R3-C D - F iled April 6, 2004

The defenda nt was convicted of driving under the influence , second offense

. The trial court imposed
a se nte nc e of

11 mon ths a nd29 da y s, to b e se rv e d on p ro batio n a ft e r s e rv ic e of e ig hty da y s' incar cer ation. In this appeal of right, the de fenda nt challeng es the suff iciency of the evidence . The judgme nt is affirmed.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P.J ., delivere d the opi nion of t he court, in which A L AN E. G L EN N and R OB E R T W. W EDEMEYER , J J ., joined.

H. Marsha ll J udd, Assistant Publ ic Def ender , for the a

ppellant, Russell K. Bowma n. Paul G. Summers, Attorney Ge n er al & Reporter ; Thomas E. Wil liams, I I I , Assistant Attorney Gene ral; and Thoma s Tansil, Assistant Distr i ct Att orney Gene ral, for

the appe llee, State of Tenne ssee.
OP IN ION During the eve ning hour s of Fe bruary 11, 2003, J ennife r Ander son, a drive -thru employ ee a t a Ta c o B e ll i n Co ok e vil le , r e c e ive d a nu mbe r o f h ara ssi ng te le ph on e c a lls wh ile a t w or k f ro m a man who identified himself as "Russ." Acc ording to Ms. Ander son, the ca ller cla imed to have be en drinking . Ms. Anderson identifie d the def endant a s the ca ller whe n he described an or der tha t he had pla c e d a t th e dr ive -thr

u e arl ie r i n th e e ve nin g . L a te r, the de fe nd a nt dr ov e thr ou g h th e Ta c o B e ll service window and of

fer ed to pay

Ms. Anderson $40.00 if she would let him smell her fee t and suck her toe s. A manag er at Taco B ell then telephone d the police.

Offic er Frank L enna of the C ookeville P olice Department was dispatched to the sc ene. A t the time of Off

icer L enna' s arrival, t h e defenda nt was still parked in the drive -thru lane of the restaur ant. When the offic er activate d his blue lights, the defe ndant drove out of the par king lot and onto a public stree t at a very low rate of spee d

. The off icer activate d his siren and followe d the-2-

defe ndant appr ox imately

one quarter of a m ile befor e the vehicle was st opped in the parking lot of the Putnam Farm Supply . As Off ice r L enna approa ched the vehicle driven by the def endant, he observe d a twelve -pac k of bee r on the re ar f loor board of the car
. The defe ndant had an ope n beer , smelled of alcohol, and had red, watery ey es. Acc ording to Offic er L enna, the defe ndant admitted drinking two or three beer s. When ques t i o n ed , t he def endant informed the off

icer that he had no ph y sic a l impa ir me nts oth e r tha n hig h bloo d pre ssu re a nd a g re e d to pe rf orm th re e fi e ld s ob ri e ty

te sts

. I n the opinion of the off

icer , the def

endant pe rformed poorly

on the t ests. Whil e per forming the oneleg g ed st an d , fo r ex ample, the de fenda nt tried twice a nd was una ble to g et past the c ount of two befor e plac ing his lifted f

oot back to the g round. The defe ndant ref used to submit to a blood alcohol te st. At trial, the def

endant a cknowledg ed that he ha d consumed two or three beers on the night in question and ex plained he drove away beca use he thought Office r L enna w as attempting to drive around him rather than attempting to make an investigatory stop. The def

endant c ontended that he was not under

the influenc e of a lcohol and conte nded that he ha d an injury to his leg, w hich later
re qu ir e d s ur g e ry , th a t a ff

e c te d h is p e rf

orma nc e on the fi e ld t e sts

. The de fenda nt's br other, James Ro n nie B owman, testified that he was with the de fenda nt shortly befor e the arr est. Bow man claimed that he saw the defe ndant drink only one bee r bef

ore the defe ndant drove his vehicle to the Ta co B ell.

I n th is a pp e a l, the de fe nd a nt c la ims that the e vid e nc e wa s insu ff ic ie nt as a ma tte r o f l a w t o support the jury

verdic t. On ap peal, the sta te is entitled to the strong est leg itimate view of the evidenc e an d al l re asonable infere nces w hich might be draw n there from. State v. Cabba g e, 571 S.W. 2d83 2, 83 5 ( Te nn . 1 97 8) . T he c re dib ili ty of the wi tne sse s, the we ig ht t o b e g ive n th e ir testimony , and the reconc iliation of conflicts in the proof are matters entrusted to the jury as the trier of fa ct. B yrg e v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978) . When the sufficie ncy of the evidenc e is cha lleng ed, the r eleva nt question is whether, a fter r eviewing the evidenc e in the light most favora

ble to the state, a ny

rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Tenn. R. App. P . 13(e) ; State v. Wi lliams, 657 S .W.2d 405, 410 (Tenn. 1983) . Questions conce rning the cr edibilityof the witnesse s, the weig ht and value of the evidenc e, as w ell as all fa ctual issues ra ised by the evidenc e ar e re solved by the trier of fac t. L iakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Be cause a verdic t of g uilt against a defe ndant
remove s the presumpti on of innoce nce and raises a presumption of g uilt, the convicted criminal de fe nd a nt b e ars the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly ins uf fi c ie nt to su sta in a

g uil ty verdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

Te nn e sse e Cod e An no ta te d s e c tio n 5 5- 10 -4 01 pr ov ide s, in p e rt ine nt p art , th a t " [i]t is unlawful for

any person to drive or be in phy sical control of any automobile or ot her motor driven vehicle on a ny

of the public roa ds and hig hway s of the state

. . . while

. . . under the influence of any intox icant, marijuana, nar cotic drug , o r drug producing stimul ating eff ects on the c entra l nervous sy stem." Te nn. Code Ann. § 55-10- 401(a) (1).-3-

I n this inst ance , the defendant stipulated that he ha d a prior c onviction for driving under the influence . The only

issue, there fore , is whether any ra t i o n al trier of

fac t could have f

ound the essential elements of the crime bey ond a rea sonable doubt. Ms. A nderson testified that the def endant place d sever al telephone calls t o the Taco Be ll on the evening in question and indi cate d that he had been drinking. At tria l, the defe ndant admitted that he dr ank thre e bee rs before driving to t he Ta co B e ll. Whe n O ff

ic e r L e nn a

arrive d a nda c tiv a te d h is lig hts , the de fe nd a nt dr ov e ou t of the Ta c o B e ll parking lot a nd onto a public street. Even afte r the office r activate d his sire n, t h e d ef endant continued driving for a

quarte r of a mile. The jury was fr ee to r ejec t the defe ndant' s claim that he did not stop because he thought Of fi ce r L enna wanted to pass him. Off icer L enna stated that the de fe nd a nt s me lle d of a lc oh ol, ha d re d, wate ry e y e s, a nd pe rf orme d po or ly on the fi e ld so brie ty te sts

. Moreov er , t h e re cord indicates that the state submitted a video, ta ken by the ca mera

in Office r L enna' s cruiser , from which the jury was a ble to view the de fenda nt's w ords and a ctions during the field sobrie t y t es t s an d subsequent ar rest. I n our view, this evidenc e is sufficie nt to support the conviction.

Acc ording ly , the judg ment is affirme d.

___________________________________ GARY R. WADE, PRES I DING JUDGE