# FILED

June 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) NO. 03C01-9705-CR-00172 ) Appellee, ) SULLIVAN COUNTY ) VS. ) HON. R. JERRY BECK, ) JUDGE JOE W. RUTHERFORD, ) ) (Public Intoxication, Resisting Appellant. ) Arrest, Interfering With an Arrest)

FOR THE APPELLANT : ROBERT CHA D NEWTON (At Trial) 800 Anderson Street Kingsport, TN 37617 RAYMOND C. CONKIN, JR. (On Appeal) 320 Cherokee Street, Suite B Kingsport, TN 37660 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter TODD R. KELLEY Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General JOSEPH EUGENE PERRIN Assistant

District Attorney

General P.O. Box 526 Blountville, TN 37617-0526

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The defendant, Joe W. Rutherford, was convicted after a bench trial of public intoxication, a Class C misdemeanor; resisting arrest, a Class B misdemeanor; and interfer ing with an arrest, a Cl ass B misdemeanor. On appeal, defendan t challengesthe sufficiency of the convictin g evide nce for each of his convictions. After a thorough review

of the record before this Court, we affirm the judgment of the trial court.

I

At ap prox imately 10:30 p.m. on August 17, 1995, Sullivan County Deputy Michael Rutherford responded to a call that an intoxicated woman was walking down Second Aven ue in Brist ol, Tennessee . The woma n, K athy Elmore, was walking with

two (2) young children and w as “very bellig erent” and “couldn’t stand up on her feet.” Rutherford sent one of the children to findan adult who could take Elmore home. Elmore persisted in y elling at Officer Rutherford and cal ling him names, so Rutherford handcuffed Elmore a nd place d her under arrest for public intoxication. Rutherford called for another patrol car to transport Elm ore to jail. After several minutes passed, d efen da nt and Lloyd Hall approac hed. Defendant, who was romanticall y involved w

ith Elmore a t the time, demanded to know what w as happe ning. Officer Rutherford testi fied that defendant had bloodshoteyes and appeared to be ver y intoxicated as

wel l. Despite Officer Rutherford’s repeated orders for defendant to step away from Elmore and leave the scene, defendant refused. Rutherford testified, “ [a]t one point, hedid say that, that I was not going to

take him, take her to, to jai l.” When the defen dant reached his hand out as if to grab either Officer Rutherford or Elmore, R utherford attempted to restrain defendant. Defendant jerked away and would not put his hands behind his back. Rutherf ord spraye d defen dant with p epper sp ray and the two str uggled. Finally, Rutherford was able to hol d defe ndant on the ground while he waited for1 Defendant was also charged with one (1) count of disorderly conduct and one (1) count of possession of a prohibited we apo n; to wit, “knuckles.” The state dismissed the disorderly conduct charge and the trial court acquitted defendant of the possess ion of a prohibited weapon charge. 3 backup. Nita Darlene Gragg, a

resident of the neighborhood, witnesse d the incident. She testified that defendant appeared intox icated because he was talk ing loudl y and staggering. She

stated that Officer Rutherford asked the defendant to leave, but defendant continued to stand “in [Rutherford’s] face.” She further testified that when Ru therfor d attempted to restrain defendant, defendant pul led away. She stated that Rutherford and defendant struggled fo r se v eral minutes before Rutherford was able to subdue defendant. Defendant testified on his own behalf. Defendant test ified that Officer Rutherford was “swinging [Elmore] around” when he arrived on the scene. Defendant stated he was me rely trying t o calm Elmore down. Defendant deni ed pro voking the officer and claimed that Officer Rutherford sprayed him “ou t of th e blue.” Defendant denied having any thing to drink that nig ht and stated that hedid not intend to interfere with Elmore’s arrest, nor di d he intend to resist arres t. Lloyd Hall also testified for the defense. He testified that defendant did not appear to be intoxicatedand spoke rationally. H all acknowledged that, although the officer repeatedly asked the defendant to back away from him and El more, the defendant refused. The trial court found defendant guilty of pub lic intoxication, resisting arrest and interfering with an a rrest. 1 Defendant ’s appeal is now properly before this Court.

II4 A. Standard o

f Review Defendant contends t ha t the evidence is insufficient to support his convictions

for pub l ic intoxication, res isting arrest and inte rfering with an arr est. When an accused challenges the sufficiency of the evidence, this Court must review the record to determine if th e evid ence adduced during the tria l was sufficient “to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In determining the sufficiency of the evidence, this Court do es not reweigh

or reevaluate the evidenc e. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978). Nor may this Court sub stitute i ts infer ences fo r those dr awn by the trier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, thi s Court is required to afford the state the strongest legitimateview of the evidence contained in the record as well as all reasonable and legitimateinferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2 d 926, 932 (Tenn. Crim. App.1995). In a bench trial, the verdi ct of the trial judge is entitled to the same w eight on appeal as that of a jury verdict. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978); State v. Frahm , 737 S.W.2d 799, 800 (Tenn. Crim. App. 1987). B. Public Intoxication Public intoxication is defined as “appear[ing] in a pub lic place under the influence of a cont rolled su bstance or any other i ntoxicating substance to the degree that: (1) [t]he

offender may be endangered; (2) [t ]here is endangerment to other persons or property; or (3) [t]he offender unreasonably annoys people in the vicinity.” Tenn. Code Ann. § 39-17-310(a). Officer Rutherford te stified that defendant appeared to be intoxic ated and had bloodsh ot eyes . Even though th e off icer a sked the defendant to leave the scene, he persisted in standing close to the officer in a threatening manner. Gragg also testified that defendant appeared to be very int oxicated, was talki ng loudly and staggering. She also testified that defendant stood close to the officer despite the officer’s repeated attempts to persuade the def endant to leave him and Elmore5

alone. Although Hall and defendant testified that defendant was not i ntoxicated on the date of the incident, th e trial c ourt accredited the testimony of the state’s witnesses

in this regard. Questions co ncerning the credibility of the witnesses, th e weight and value to be given

the evidence as well

as all factual issues rai sed by the evidence are resolved by the trier of fact, not this Court. State v. Tuttle , 914 S.W.2d at 932. We find that the evidence is sufficient to find the defendantguilty of public intoxication. This issue is without merit.

C. Interfering With

an Arrest Tenn. Code Ann. § 39-16-602(a) provide s that it is an offense to

“intentionally prevent or obstruct a n yone known to the person to be a law enforcement officer . . . from effecting a[n] . . . arr est . . . of any

person . . . by using force against the law enforcement officer.”When defendant arrived at the scene, the officer informed him that he was arresting Elmore for public intoxi cation. Although the officer ask ed defendant to leave, defendant persisted i n s tanding close to the officer in a threatening manner. Defendant then told Officer Rutherford that he was not going to allow the officer to take El more to jail and reached his arm out as if to grab Elmore or the officer. Although defendant contends that there is no evidence that he us ed force to prevent the officer from arresting Elmore, a rational trier of f act could conclude otherwise. We find that the evide nce is sufficient to support defendant’s conviction for inte rfering with an arr est. This issue has no merit. D. Resisting A

rrest Resi sting arrest is define d as “intention ally prevent[ing] or o bstruct[ing] anyone known to the person to be a law enforcement officer, or an yone acting in a law enforcement officer's presence and at such officer's dire ction, from ef fecting a sto p, fris k, halt, arrest or sear ch of any person, including the defendant, by using force against the law enforcement officer or another.” Tenn. Code Ann. § 39-16- 602(a).6 In the present case, defendant refused to comply with the

officer’s requests to leave Elmore alone. When he reached his ar m out to grab the officer or Elmor e, Officer Rutherford informed the defendant that he w as under a rrest. When the officer tried to restrain defendant, defendant tried to pull away from the officer. The officer was forced to use pepper spr ay to subdue t he defendant, but defendant continued to struggle with the officer. Although defendant testified that he did not intend to resist arrest, a ra tional trier of fact could c

onclude other

wise. Th e evidenc e was sufficient to support defendant’s conviction for res isting arrest. This issue is without merit.

III

After a thorough review of the record before this Court, we fin d that the evidence is sufficient to support defendant’s convictions f or p ublic i ntoxication, interfering with an arrest and resisting arrest. Accordingl

y, the judgment of the trial court is affirmed.

JOE G. RILEY, JUDGE CONCUR:

JOSEPH M. TIPTON, JUDG E

CURWOOD WITT, JUDGE