### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 18,

2001 Session
STATE OF TENNESSEE v. JAMES M. BRENT
Direct Appeal from the Circuit Court for Rutherford County

No. M-48451 J. Steve Daniel, Judge

No. M2000-02369-CCA-R3-CD - Filed October 26, 2001

A Rutherford County jury convicted the defe ndant of driving under the influence of an intoxicant. The tri al c our t se nte nced the defe nda nt t o el even mon ths and twe nty- nin e days to be served in a local workhouse. The court required the defendant to serve forty-eight

hours and allowed the defendant to serve the remainder of his sentence on probation. The defendant subsequently moved for a new trial and then ame

nded his motion. The

trial court denie

d his amended motion, and the defendant appeals this denial, a lle ging that the e vidence presen

ted at trial was ins

ufficient to suppo

rt his conviction, that the trial court erred by allowing testimony regarding the defen

da nt’s refusal to submit t o a blood alcohol tes

t, and that the tria

l court erred by

instructing the ju

ry that they

could consider this refusal as evid ence of the defendant’s consciousness of guilt. After reviewing the record and applicable case law, we find that these issues lac k mer it and therefore affirm the trial court’s denial of

the defendant’s

motion for new tria

l.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.
V. Michael Fox, Na

shville, Tennesse

e, for appellant

, James M. Brent.

Paul G. S umm ers , At tor ney G ener al & R epo rte r; E liz abet h T. Rya n, A ssistant Attorney General; Bill Whitesell, District Attorney Ge neral; and Bill Osborne, Assistant District Attorney, for appellee, State of Tennessee.

OPINION
Factual Backgrou

nd

On June 12, 19 99, a pol ice officer stopped the defendant, James Brent, for speeding. The defendant was traveling twenty-three (23) miles per hour in excess of the posted speed limit. After stopping the defendant, th e officer notic

ed an odor of alc

ohol on the defend

ant’ s person, and the1 The de fendant testified th at he did no t take the one-le gged stand test and passe d all others.

2 The defendan t testified that the officer initially told him that the cost of the test was $230.00 and t

hat after the defe ndant in dicated t hat he di d not have enou gh cash or a credit card to pay for the t est, the of

ficer tol d him that he was unsur e of the cost.

3 Moreover, a police offi cer is not re

quired to trans

port an arrest

ee to a hospital

for such te sting. See State v. Choate , 667 S.W.2d 111 (Tenn. Crim. App. 1983 ); State v. Mark Bateman , No. 01C01-9608-CC- 00377, 1997 WL 7 79122 , at *4 (Tenn . Crim. App . at Nashville, D ec. 17, 19 97).
-2- defend a nt admitted to having consumed alcohol. The officer then requested that the defendant perform some field sobriet

y tests, and the defendant agreed. The defendant faile d two standard tes

ts, the one-legged stand test and the heel to toe test. However, because the def endant complained of
a back ailment, the

officer administ

ered two non-sta

ndard field sobri

ety tests, the finger

dexterity tes

t and the numerical countdown test, which the defendant also failed. 1 Based on this performance, the officer arrested the defendant for driving under the influence of an intoxicant. After the officer read the implied consent form to the defendant, the defendant indicated that he would agree t o undergo
a blood alcohol test,

and therefore t

he offic er transpo rted him to a hospital. While en route, the defendant asked the

officer if the defendant

would be require

d to pay for t

he costs associat

ed with this test. The officer responded that while he did not know the cost, he thought that the defendant would have to pay the cost if he was found guilty of dr iving under the influence. 2 Based on this information, the defendant decided not to take the blood alcohol test, and indicated on his implied consent form that his lack of funds was the reason for his refusal. The defendant wa s subsequen tly tried and convicted for driving under the influence of an intoxicant. As noted above, the defendant now brings this appeal, alleging three grounds of error.

Testimony Allowed at Trial

The defe nda nt first alleges that the trial cour

t erroneously

allowed the arre

sting officer to testify regarding the defendant’s refusal to submit to a blood alcohol test, as the defendant refused to take this test only

because he was

concerned that

he might be respo

nsible for the cost

of that test. However, the defendant has waived this issue on appeal because he failed to object to this testimony at trial. SeeTenn. R. App. P. 36(a). State v. Smith , 24 S.W.3d 274 (Tenn. 2000); State v. Duncan , 698 S.W.2d 63, 67 (Tenn.1985). However, even if the issue was not waive

d, the issue never

theless lacks merit. An arresting police officer does not have an affir

mative duty to

inform an arres

tee of the costs associated

with a blood alcoho

l test. 3 Rather, an officer is simply prohibited from taking any actions to f rust rate an arrestee’s efforts to undergo such testing. See State v. Livesay , 941 S.W.2d 63, 66 (Tenn. Crim. App. 1996) (acknowledging that “‘there is no duty or obligation on law enforcement officers to administer a blood test,’ as long as t hey do not ‘frustrate the reasonable efforts of an accused to obtain a timely sample of his blood

. . . .’”(quoting wi

th approval Brown v. Mun. Court , 86 Cal. App. 3d 357 (19

78))); see also Mark Bateman , 1997 WL 779122, at *4 (citin g same and-3-

affirming a lower

court’s conviction of a defendant for DUI, as there was “no evidence in the record that the officer(s) hampered or obstructed any ef fort by the defendant to obtain a blood test”). In the instant case, there is no evidence that the arresting officer frustrated

an attempt by the defendant to obtain a blood test. The officer simply stated that he was unsure about the cost of such a test; he did not prevent the defendant from taking the test or from learning about test costs from hospital administra

tors. Therefore

, we find that this is sue lacks merit.

Jury Instruction Error

The defendant alleges that the trial court er

red by instr

ucting the jury

that they co

uldconsider the defendant’s refusal to submit to a blood alcohol test as consciousness of guilt, as the defendant only refused to take the test because the police officer failed to assure him t hat he would not be responsible

for the cost of the tes t. However, the defendant has failed to include the court’s jury instructions in his record for appeal. Without the jury instructions, it is imp

ossible for this

court to determine if the trial court erred wh en instructing the jury. Because it is the defendant’s responsibility

, as the ap pellant, to include the information in the record necessary to resolve the issues presented for appeal, any issue regar ding the trial court’s jury instructions is waived. Tenn. R. App. P. 24; see also State v. Timmy Fulton , No. 02C01-9706-CC-00223, 1998 WL 188532, at *6 (Tenn. Crim. App. at Jackson, Apr. 21, 1998).

Sufficiency of the Evidence

The defendant argues that the evidenc e presented at tr ial was insufficie

nt to support his conviction f

o r driving under the influence of an intoxicant. When an accused challenges the sufficiency

of the convicting evidence, this court must review the record to determine if the evidence adduced during the trial was sufficient "to support the finding of the trier of fa

ct of guilt beyond a
reasona ble doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicat e d upon direct evidence, ci rcumsta ntial evidence, or a combination of direct and circumstantial evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In determining the sufficiency of the ev idence, this court does not re-weigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier

of fact from circumstantial evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956). This court is requ ired to afford the state the strongest legitimate view of the evidence containedin the record, as well as all

reasonable and legitimate inferences that may be drawn from the evidence. State v. Herrod , 754 S.W.2d 627, 632 (Tenn. Crim. App. 1988). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well

as all factual iss

ues raised by

the evidence, a

re resolved by

the trier of fac

t, not this court. State v. Pappas , 754 S.W.2d 620 , 62 3 (T enn . Cr im. App . 19 87) . A gu ilt y verd ict by th e ju ry, approved by th e trial judge, accre

dits the testimony

of the witnesses f

or the state and r

esolves all conflicts in favor of

the t heory of the state. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption-4-

of guilt, the accus

e d has t he burden on appe

al of illustrating

why the evid

ence is insuffic

ient to support the verdict returne

d by the trie

r of fact. State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts containedin the record and the inferences that may be draw n from the facts are insufficient,as a matter of law, for a

rational trier

of fact to find the

accused guilty

beyond a re

asonable doubt. Matthews , 805 S.W.2d at 780. The evidence presented in the instant trial was sufficient for a rational trier of fact to find the defendant guilty bey

ond a reasonable

doubt. The arresting police officer stopped the defendant for speeding in excess of twenty miles over the posted speed limit. Moreover, the police officer noticed
an odor of alcohol emanating from the defendant, and the defendant admitted to having consumed alcohol. The police officer also testified that the defendant faile

d four sobriety

tests. This

evidence is sufficient for a rational trier of fact to find that the defendant was driving or in phy sical con trol of his vehicle

while under the influence of an intoxicant. See Tenn. Code Ann. § 55-10-401 (1998). Therefore, we find that the defendan t’s challen ge of the sufficiency of evidence at tr

ial lacks merit.

Conclusion

For the foregoing reasons, we find tha t none of the defendant’s allegations merit relief. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE