### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs D ec em be r 13, 200 5

STATE OF TENNESS EE v . DENNIS D. PLEMO NS, SR.
Appeal f romthe Cr im inal Cou rt for Roane County No. 12589 Russell E. S im m ons, Jr., Jud ge

No. E2004-01558-CC A-R3- CD F iled Fe bruary 9, 2006

A Roane County

Criminal Court juryconvicted the defe ndant, Dennis D. Plemons, Sr., of driving under the influence , a Class A misdemeanor , and the trial court sentenc ed him to eleven months and twenty -nine da y s with all but five day s suspended. On appea l, the defe ndant contends the e vidence is i ns uf fi c ie nt. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J. , d e li v e r e d th e o p in io n o f th e c o u r t, in w hich D AVI D G. H AYES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.
Kristi M. Davis, Knoxvi lle, Tenne ssee (on appea l); and C harle s B. Hill, I I , King ston, Tennessee (at trial), for the appe llant, Dennis D. Plemons, Sr.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Jenn if e r L . B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; J . Scott McCluen, District Attorney Gene ral; and D. Roge r Delp, Assistant D istrict A ttorney Gene ral for the a ppellee, State of

Tenne ssee.

OP IN ION
At the trial, Tennessee Highw ay Patrol Offic er Gary Snow testified that on October 3, 2000, he was dispatched to investigate a wre ck. He said he arrived to dis cover the def endant’ s car

down

an embankment. He said no skid ma rks wer e appar ent on the road. He said the d ef en d an t was standing outsid e a h o u s e n ea r t he sce ne. He said that he talke d to the defe ndant and that the defe ndant admitted driving the ca r, explaining that the w rec k occur red be cause he wa s driving too close to the shoulder

.
Offic er Snow testified that the defendant smelled of alcohol. He also said the def endant “ had appar ently

urinated on himself, a nd may be some fec es on him, too.” He sa id that the defe ndant was unsteady on his feet a nd that his speech w as slow. He sa id he believed t he defenda nt was under the influence of alc ohol and aske d the def endant to pe rf

orm three field sobriety

tests. He said the-2-

defe ndant re fused to p er form one of the tests and fa iled the other two. H e said he determined the defe ndant was under the influence of alcohol and asked him to take a blood alc ohol test, to which the def endant c onsented. He said Roane County Sheriff’ s Depa

rtment Deputy

Thad Watkins helped administer the test.

On cr oss-examination, Offic er Snow admitted the def endant willing ly

cooper ated. Of

fice r Snow acknowle dg ed that the de fenda nt refuse d to perform one of the fie ld sobriety tests because of injuries to his knees and a rms. He said, however , he did not think it would be difficult for some one who had just been in a si milar acc ident to be able to walk a straig ht line. Offic er Snow admitt ed that he did not know whethe r the wr eck a ffe cted the de fenda nt’s ability to perform the tests.

Th a d Wa tki ns te sti fi e d th a t on Oc tob e r 3 , 200 0, he wa s a de pu ty wi th the Roa ne Cou nty Sheriff’ s Depa

rtment. Mr. Watkins said that Offic er Snow broug ht the defe ndant to the jail at the Sheriff’ s Depa

rtment, that the def

endant c onsented to a Br eatha ly zer test, and that he administere d the test. He sa id he obs erve d the defendant for twenty minutes befor e g iving him the test to ensure that th e de fe nd a nt d id n ot do a nythi ng that c ou ld a lte r the te st r e su lts . H e sa id the re su lts of the te st ref lected that the defe ndant’s blood alcohol content was 0.19%. On cr oss-examination, Mr. W atkins maintained that he obse rved the defe ndant for twe nty minutes before administering the test.

Th e de fe nd a nt t e st ifie d th a t he ha d a n a c c ide nt o n th e e ve nin g of Oc tob e r 3 , 2 00 0, wh ile he a din g to h is f

ri e nd ’s ho us e on Dry F or

k Va lle y Roa d. He sa id the ro a d w a s v e ry na rr ow a nddid not ha ve shoulders. He said he had had two beer s to drink be fore driving

. He said he wa s t aking high blood pr essure medicine. He said that he swe rved to a void hitti ng a dee r in the road a nd that

as a result, he lost control of his car and care ened down an emba nkment twenty to thirtyfee t before coming to a re st. He said he hit many tree s while car eening down the embankme nt. He said that he was “ kind of pinned” in the car and that he neede d the assistance of three other pe ople to g et out of the ca r.

Th e de fe nd a nt s a id h e re fu se d to pe rf or m on e of

th e fi e ld s ob ri e ty

te sts be c a us e his kn e e s, which had be en surgica lly repa ired after a football injury , wer e hurting. He sa id that female jailers attempted to administer the Br eatha ly zer test, that they could not g et the machine to work, that Mr. Watkins punched some key s on the m achine , and that he then told the defe ndant that the def endant

was extremely

intox icated. H e said that a lthough Mr. Watkins talked to him briefly , Mr. Watkins did not do so for twenty

minutes. He said he was talking to the fema le jailers a nd to Office r Snow but not to Officer

Watkins during the time he was waiting to ta ke the B reathaly zer test. He sa id he was not intox icated e noug h “to wait two hours and then come ove r her e and ta ke a te st and blow that much.”

On cr oss-examination, the defendant said he wa s not able to apply his br akes befor e g oing

ov e r the e mba nk me nt. He a c kn ow le dg e d h e ne ve r t old Of fi c e r Sno w that he ha d s we rv e d to a vo id hitting a de er. The defe ndant maintained that he only had two bee rs to drink.-3-

On appea l, the defe ndant contends the evidenc e is insuff icient. He claims th at Officer Snow’s testimonyis in conflict with the videotape introduced into e vidence

. He also claims that any deviation from the norm in his performanc e of the field sobriety tests was base d upon his having be e n in jur e d a s a re su lt o f the a c c ide nt a ndthat th e re su lts of the B re a tha ly zer

te st a re no t r e lia

ble beca use of the inter fer ence of the fe male jailers in the test’s administration. The state re sponds that the evidenc e is sufficie nt. We ag ree with the state.

Our standa

rd of r eview w hen the de fenda nt questions the s u ff i ci ency of the e vidence on appea l is “whe ther, afte r viewing the evidenc e in the light most fa vorable to the p ro s ec u t i o n , any
ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7 , 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the evidenc e; rathe r, we presume that the jury has resolved all conflicts in the testimonyand dra wn all rea sonable infe renc es fr om the evidenc e in fa vor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (T enn. 1984); State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cre dibilit y

wer e re solved by

the jury

. See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

.
Te nn e sse e Cod e An no ta te d s e c tio n 5 5- 10 -4 01 state s in pe rt ine nt p art :
(a) I t is unlawful for any person to drive or to be in phy sical control of a ny a uto mob ile or oth e r mot or dr ive n ve hic le on a ny of the pu bli c
ro a ds a ndhig hw a y s o f the state , o r o n a ny str e e ts o r a lle y s, or

wh ile on the pre mises of any

shopping cente r, trailer park or any apartment house complex, or any

other pre mises which i s g ener ally fre quented by the pu bli c a t la

rg e , w hil e : (1 ) U n d ert h e i n fl u en ce o f a n y i n t o x i ca n t , m ar i

j u a n a , n ar co t i c d ru g,
or drug producing stimul ating eff ects on the c entra l nervous sy stem

. . . .
I n St a te v. Se ns ing , o ur

su pr e me c ou rt

re la xedthe e vid e nti ary foundatio n n e e de d to a dmi t breath te st r esults obta ined from a breathaly zer test. 843 S.W .2d 412, 416 (Tenn. 1992) . Due to the reliability and g ener al ac cepta nce of the testing device , the court held that a ce rtified o p er at or no longe r had to know the scientific tec hnology behind the B reathaly zer machine ’s oper ation. I d. I nstead, the c ourt established six prerequisites to admissibili ty . The o fficer who a dminist ere d the test must show:

(1) that the tests w ere perf

ormed in a ccor dance with the standards a nd operating pr ocedur e promulg ated by the forensic services division of the Tenne ssee B ureau of I nvestig ation, (2 ) tha t he wa s p ro pe rl y

c e rt if ie d in a c c or da nc e wi th tho se sta nd ard s, (3) that the evidentiary breath testing instrument used was ce rtified by the fore nsic servic es division, was tested re g ularly for a ccur acy

and

was wor king pr operly

when the br eath test wa s perf ormed,-4- (4) that the motorist was observed for the re quisite 20 minut es prior to the te st, a nddu ri ng thi s p e ri od , h e didno t ha ve for eign matter in his mouth, di d not consume any alcoholic be vera g e, smoke, or reg urg itate, (5) e vidence that he follo we d the pre scribed ope rational proc edure , [and] (6) [that] t he printout rec ord offere d in evidenc e [ is] the result of the test g iven to the per son tested.

I d.

I nitially , we note that Sensing de alt wit h the admissibilit y of test re sults rather than sufficie ncy

of the e vidence . I n any ev ent, at the trial, Office r Snow testified that the de fenda nt smelled of alc ohol and fa iled the field sobrie ty tests he at t em p t ed

. M r. Watkins testified that he ob se rv e d th e de fe nd a nt f

or the re qu ir e d tw e nty min ute s a nd that th e re su lts of the B re a tha ly zer

te st
re fl e c te d th e de fe nd a nt’ s b loo d a lc oh ol l e ve l w a s 0 .1 9% . W e con c lud e tha t a ratio na l ju ro r c ou ld have f ound the def

endant g uiltybey ond a re asonable doubt of driving under the in fl u en ce

. The defe ndant is not entitled to relief on this issue.

B a se d up on the fo re g oin g a nd the re c or d a s a wh ole , we a ff ir m the jud g me nt of the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE