# FILED
November 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST SESSION , 1997

STATE OF TENN ESSEE, ) C.C.A. NO. 02C01-9610-CC-00365 ) Appellee, ) ) LAUDERDALE COUNTY ) V. ) ) HON. JOSEPH H. WALKER, DAVID SCOTT MOSS, ) JUDGE ) Appellant. ) (DUI)

FOR THE APPELLANT : FOR THE APPELLEE : WILLIAM DAN DOUGLA S, JR. JOHN KNOX WAL KUP 109 North Main Attorney General & Repor ter Ripley, TN 38063 CLINTON J. MORGAN Assistant Attorney Gener al 2nd Floor, Cordell Hul l Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T

. RICE District Attorney General MARK DA

VIDSON Assistant District A

ttorney General 302 Market Street P.O. Box 562 Somerville, TN 38068 OPINION FILED ________________________ CONVICTION AFFIRMED;SENTENCE MODIFIED THOMAS T. WOODALL, JUDGE-2- 

# OPINION

The Defe ndan t, David Scott M oss, a ppea ls as of rig ht from his convicti on of drivi ng under the i nfluence of an intoxi cant (DUI) following a non-jury trialin the Circu it Court ofLauderda le County. In his sol e issue on appeal, the Defendant argues that the ev idence was insuf ficien t to sustai n the convic tion. We affirm the judgm ent of the tria l court.

When an accused chall enges the suff iciency of the convi cting e videnc e, the standard is whether, after r eviewing t he eviden ce in th e light m ost favo rable to the pros ection, an y rational tr ier of f act could have found the essent ial eleme nts of the crim e beyon d a reas onable doubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979 ). This standard i s applicabl e to findi ngs of guil t predicated upon directeviden ce, circ ums tantial e viden ce or a combinati on of direc t and circumstant ial evidenc e. State v . Matt hews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). O n appe al, the State is entitled to th e strong est legiti mate v iew of the eviden ce an d all inference s therefro m. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdic t of guilt removes the pr esumption of i nnocence and replaces i t with a pr esumption of gui lt, t he accused has the burden in thi s court of illustrati ng why the evid ence is insuffi cient to support the verdictreturned by the trier of fa ct. State v. Williams , 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citi ng State v. Tug gle , 63 9 S.W.2d 913, 914 (Tenn. 1982)).-3- Questions concerning the credib ilit y of thewitnesses, the weight and value to be given the evidence, as well as al l factua l issues r aised by the evidence , are resolved by the tr ier of fac t, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied , id . (Tenn. 1987). Nor may this court reweigh or reevalu ate the ev idence
. Cabbage , 571 S.W.2d at 835.

On May 28, 1995, at

approxim ately 1:30 a.m., Mike Kirkpatrick, a d eputysheriff with the La uderda le Coun ty Sheriff ’s Department, observed a car weaving back and forth ac ross the center line of Highway 51 at a spee d of 60 miles per hour. K ir kpatrick p ulled the c ar over an d aske d the De fendan t to step ou t. O fficer Kirkpatr ick test ified t hat at thi s point he coul d smell alcoholon the Defendant and that hi s speech was slurr ed. He also ob served six empty beer bottlesin the passenger side f loor board with “ no alcohol l eft in any of them, you know, exceptfor the suds in the bot

tom of them.” He then asked the Defendant to perform field sobriety tests.
First, Officer Kirkpatr ick asked Defendant to recite the alphabet and Defendant was able to do t his. Second, Defendant attempted the one-leg stand test, but was unable to kee p his balance. He failed t his test twice. Defendant told Officer Kirkpatrick that he did not have any phys ical injuries to his legs t hat would prevent h im from perform ing th e te st. Thir d, Defendant per

formed the heel-to-toe test, during which he cou ld not wa lk hee l-to-toe and h e lost h is balance several tim es. Finally , Officer Kirkpat rick conducted the horizontal gaze nystagmus test on Defen dant. He ob served that De fendant’s eyes were bloodshotand th at “they were ju mpin g” whic h indic ate d to the deput y that Defendant had been drinki ng. The Defendant di d not object to the testimony-4-

regarding the result

s of the hori zontal gaze nys tag mu s test, and we note that
e v en if he had, and the evidence were ruled t o be inadmissibl e, that our conclusion a s to the suf ficien cy of the ev idence in t his case would not change. See State v. Turner , C.C. A. No. 03 C01-9604-CC-00151, slip op. at 7, Cocke Coun ty (Tenn. Crim. App., Knox vill e, July 9, 1997) (N o Rule 11 a pplication filed); State v. Murphy , C.C.A. No. 01C01 -9412- CC-00401, Davidson County (Tenn. Cri m. App., Nashvil le, fi led Oct. 6, 1995), perm . to appeal granted (Tenn. 1996).

On the basis of De fendant’s dri v ing, his slurred spe ech, the empty be er bottles, and his performance on the field sobri ety tests, Deputy Ki rkpatrick concluded that De fen dant was unde r t he i nfl uence of alcoholand arr

est ed hi m. Defen dant refu sed to tak e an intox imeter te st.

For the defense, Stephanie Spain testifi ed that on May 28, 1995, she met the Defenda nt in Dyersburg , Tennes see so they co uld ride together t o Un ion City, Tennes see for a political fund raising dinner. She met Defendant about 6: 00 p.m. at the Holiday I nn i n Dyersburg. The di nner started at 7:00 p. m. and she said that

no alcoholi c beverages were ser ved at the f unction. After dinner, she and Defendant drove back t o Dyersburg and went to a bar cal led Checkers at approximatel y 10:30 p.m. She testifi ed that the Defendant drank one beerand poss ibly started a s econd one while at the bar. They then lef t a nd went to the Holiday Inn where Defendant had l eft his car earli er that evening. A few minutes later they decidedto go for a drive towards the river, and she testifi ed that nei ther of the m were dr ink ing . Th ey t hen went bac k to theHol iday I nn ab out 1:0 0 a. m.
w here Def endan t got into his c ar to drive to M emph is, and sh e drove h ome to-5-

Jackson. Ms. Sp ain testif ied that i n her opini on, Defendant di d not appear to be intoxicated
.

The Defendant test ified at trialto the same events as Ms. Spain. Furthermore, he explained that the r eason his car was weav ing when the of ficer stopped him was because his steering was out of line. He admitted to t he officer thathe had drank one or t wo beers earli er that evening. The Defendant testif ied thathe passed the field sobriet y tests, and that

the reason he was a littl e shaky
was because he was nervous and it was lateat night
. Defendant also testifi ed thatthe reason he refused the intoxi meter test was because he was taki ng allergy medic ine and he was conce rned tha t it would affec t the results of the test.
Driving under the influence is defi ned in part as drivi ng or being in physical control of an automobil e on any of thepublic r oads and highways of t he State of Tennessee, or on any streets oralleys while under th e influenc e of any into xicant. Tenn. Code Ann. § 55-10-401 (a)(1) (Supp. 19 96). Therefore, the evidence must show th at the offender : “(1) was in physi cal contr ol of an automobile, (2)on a public road withi n the State of Tennessee, and (3) was under t he influ ence of an intoxicant.” State v. Waddey , C.C. A. No. 01C01-9508-CC-00245, sl ip op. at 3, W il liamson County, (Tenn. Crim. App., Nashv ille, July 5, 199 6) (Rule 11 application not filed).-6- First, from the testi mony at tri al, Defendant was clearl y in physi cal contr ol of his car. Officer

Kirkpatr ick observed the car weavi ng back and fort h, pulle d the
car over, and Defen dant step ped ou t o f the dr iver’ s side. Second, Defendant drove his car on Hi ghway 51, a public r oad within the State of Tennessee. Third, based on Office r Kirkp atrick’s observati ons of Defendant and his experi ence, he determined Defe ndan t to be c learly un der the influen ce of a lcoho l. The trialcourt could have co nclude d fr om Defendant’s er ratic driving, his slur red speech, t he empty beer b ottles in his car , and h is failure to ade quate ly perfo rm two of the fie ld sobrie ty tests, th at the D efend ant wa s und er the in fluenc e of alc ohol.

In viewing t he evidence i n the li ght most favor able to th e Sta te, the evidence was su ffi cient to support a convi ction fo r DUI. This i ssue is wit hout merit.

Neither

party raise d the leng th of sente nce for D efe ndant’ s convict ion of DUI first of

fense as an issue i n this appeal . The tri al court s entenced Defendant to serv e six ( 6) months in the county jail with all but forty-eight (48) h ours suspended, and assessed a $350.00 f ine. The DUI stat utes mandate that th e maximum sente nce fo r a DU I convic tion is eleven (11) months and twenty-ni ne (29) days, wit h the tri al court t o determine what porti on of the sentence above t he manda tory minimum pun ishme nt must be served pri or to a defendant being placed on prob ation. State v. Combs , 945 S.W.2d 770, 774 ( Te nn. Crim. App. 1 996); Tenn. C ode Ann . § 55-10-403 (c). Furthermo re, Section 55-1 0-403(c ) requiresthat D.U.I . offender s be placed on probat ion for the difference bet ween the tim e actu ally served a nd the m aximum possible senten ce. Accordi ngly, we affirm the Defend ant’ s conv ict ion f or DUI first

offense, but mod ify the D efend ant’s-7-

sentence by increasi ng it to eleven (11) months and twenty-nine (29) days, with all but forty- eight (48) hours suspended. All other portions o f the sentence imposed by the tr ial court shal l remain thesame. The judgment of the trial cour t, as modified, is accordi ngly aff irmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge