IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 13, 2005

STATE OF TENNESSEE v. DENNIS D. PLEMONS, SR.

 Appeal from the Criminal Court for Roane County

No. 12589 Russell E. Simmons, Jr., Judge

No. E2004-01558-CCA-R3-CD Filed February 9, 2006

A Roane County Criminal Court jury convicted the defendant, Dennis D. Plemons, Sr., of driving

under the influence, a Class A misdemeanor, and the trial court sentenced him to eleven months and

twenty-nine days with all but five days suspended. On appeal, the defendant contends the evidence

is insufficient. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES

CURWOOD WITT, JR., JJ., joined.

Kristi M. Davis, Knoxville, Tennessee (on appeal); and Charles B. Hill, II, Kingston, Tennessee (at

trial), for the appellant, Dennis D. Plemons, Sr.

Paul G. Summers, Attorney General and Reporter;Jennifer L. Bledsoe, Assistant Attorney General;

J. Scott McCluen, District AttorneyGeneral; and D. Roger Delp, Assistant District Attorney General

for the appellee, State of Tennessee.

OPINION

At the trial, Tennessee Highway Patrol Officer Gary Snow testified that on October 3, 2000,

he was dispatched to investigate a wreck. He said he arrived to discover the defendant’s car down

an embankment. He said no skid marks were apparent on the road. He said the defendant was

standing outside a house near the scene. He said that he talked to the defendant and that the

defendant admitted driving the car, explaining that the wreck occurred because he was driving too

close to the shoulder.

 

Officer Snow testified that the defendant smelled of alcohol. He also said the defendant “had

apparently urinated on himself, and maybe some feces on him, too.” He said that the defendant was

unsteady on his feet and that his speech was slow. He said he believed the defendant was under the

influence of alcohol and asked the defendant to perform three field sobriety tests. He said the
-2-

defendant refused to perform one of the tests and failed the other two. He said he determined the

defendant was under the influence of alcohol and asked him to take a blood alcohol test, to which

the defendant consented. He said Roane County Sheriff’s Department Deputy Thad Watkins helped

administer the test. 

On cross-examination, Officer Snow admitted the defendant willingly cooperated. Officer

Snow acknowledged that the defendant refused to perform one of the field sobriety tests because of

injuries to his knees and arms. He said, however, he did not think it would be difficult for someone

who had just been in a similar accident to be able to walk a straight line. Officer Snow admitted that

he did not know whether the wreck affected the defendant’s ability to perform the tests. 

Thad Watkins testified that on October 3, 2000, he was a deputy with the Roane County

Sheriff’s Department. Mr. Watkins said that Officer Snow brought the defendant to the jail at the

Sheriff’s Department, that the defendant consented to a Breathalyzer test, and that he administered

the test. He said he observed the defendant for twenty minutes before giving him the test to ensure

that the defendant did not do anything that could alter the test results. He said the results of the test

reflected that the defendant’s blood alcohol content was 0.19%. On cross-examination, Mr. Watkins

maintained that he observed the defendant for twenty minutes before administering the test. 

The defendant testified that he had an accident on the evening of October 3, 2000, while

heading to his friend’s house on Dry Fork Valley Road. He said the road was very narrow and did

not have shoulders. He said he had had two beers to drink before driving. He said he was taking

high blood pressure medicine. He said that he swerved to avoid hitting a deer in the road and that

as a result, he lost control of his car and careened down an embankment twenty to thirty feet before

coming to a rest. He said he hit many trees while careening down the embankment. He said that he

was “kind of pinned” in the car and that he needed the assistance of three other people to get out of

the car.

The defendant said he refused to perform one of the field sobriety tests because his knees,

which had been surgically repaired after a football injury, were hurting. He said that female jailers

attempted to administer the Breathalyzer test, that they could not get the machine to work, that Mr.

Watkins punched some keys on the machine, and that he then told the defendant that the defendant

was extremely intoxicated. He said that although Mr. Watkins talked to him briefly, Mr. Watkins

did not do so for twenty minutes. He said he was talking to the female jailers and to Officer Snow

but not to Officer Watkins during the time he was waiting to take the Breathalyzer test. He said he

was not intoxicated enough “to wait two hours and then come over here and take a test and blow that

much.”

On cross-examination, the defendant said he was not able to apply his brakes before going

over the embankment. He acknowledged he never told Officer Snow that he had swerved to avoid

hitting a deer. The defendant maintained that he only had two beers to drink. 
-3-

On appeal, the defendant contends the evidence is insufficient. He claims that Officer

Snow’s testimony is in conflict with the videotape introduced into evidence. He also claims that any

deviation from the norm in his performance of the field sobriety tests was based upon his having

been injured as a result of the accident and that the results of the Breathalyzer test are not reliable

because of the interference of the female jailers in the test’s administration. The state responds that

the evidence is sufficient. We agree with the state.

Our 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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh

the evidence; rather, we presume 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 about

witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Tennessee Code Annotated section 55-10-401 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

. . . .

In State v. Sensing, our supreme court relaxed the evidentiary foundation needed to admit

breath test results obtained from a breathalyzer test. 843 S.W.2d 412, 416 (Tenn. 1992). Due to the

reliability and general acceptance of the testing device, the court held that a certified operator no

longer had to know the scientific technology behind the Breathalyzer machine’s operation. Id.

Instead, the court established six prerequisites to admissibility. The officer who administered the

test must show:

(1) that the tests were performed in accordancewith the standards and

operating procedure promulgated by the forensic services division of

the Tennessee Bureau of Investigation,

(2) that he was properly certified in accordance with those standards,

(3) that the evidentiary breath testing instrument used was certified by

the forensic services division, was tested regularly for accuracy and

was working properly when the breath test was performed,
-4-

(4) that the motorist was observed for the requisite 20 minutes prior

to the test, and during this period, he did not have foreign matter in

his mouth, did not consume any alcoholic beverage, smoke, or

regurgitate,

(5) evidence that he followed the prescribed operational procedure,

[and]

(6) [that] the printout record offered in evidence [is] the result of the

test given to the person tested.

Id. 

Initially, we note that Sensing dealt with the admissibility of test results rather than

sufficiency of the evidence. In any event, at the trial, Officer Snow testified that the defendant

smelled of alcohol and failed the field sobriety tests he attempted. Mr. Watkins testified that he

observed the defendant for the required twenty minutes and that the results of the Breathalyzer test

reflected the defendant’s blood alcohol level was 0.19%. We conclude that a rational juror could

have found the defendant guilty beyond a reasonable doubt of driving under the influence. The

defendant is not entitled to relief on this issue. 

Based upon the foregoing and the record as a whole, we affirm the judgment ofthe trial court.

 

___________________________________ 

JOSEPH M. TIPTON, JUDGE