# FILED
October 18, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT KNOXVILLE AUGUST 1999 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9802-CR-00062

) ) Washington County v. ) ) Honorable Arden L. Hill , Judge ) TOMMY S. FRANKLIN, ) (Driving Under the Influence- aiding and ) abetting) ) Appellant. ) For the Appellant : For the Appellee : Debbie Huskins Paul G. Summers Assistant Public Defender Attorney General of Tennessee Post Office Box 996 and Johnson City, TN 37605 Todd R. Kelley (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Julie A. Rice Post Office Box 426 Joe C. Crumley Knoxville, TN 37901-0426 District Attorney Gener al (ON APPEAL) and Michael Laguardia Assistant District A

ttorney Post Office Box 38 Jonesborough, TN 37659

OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Tommy S. Fra nklin, appeals as of right from his conviction by a jury in the Washington County Criminal Court for driving under the influence (DUI)- aiding and abetting, a Class A misdemeanor. He was s entenced to eleven months and twenty-nine days, of whic h five days were to be spent in the county jail with the remainder on probation. H e was fined fifteen thousand dol lars. On appeal, the defendant contends that the evidence is insuff icient to support his conviction. We affirm the judgment of conviction.

At trial, Johnson City Police Officer Mike Butler testified that on January 27, 1996, he responded to an accident involving the defendant at about 10:30 p.m. He said that upon arrival, he s aw a truck that had been hit, and the driver stated that another vehicle had hit him and stopped further up the road. Officer Butler said he found the defendant’s car up the st reet. He testified that EMS wor kers were examining the defendant at a nearby apartment. He said the defendant stated that “ they” hit him. Officer

Butler said the defendant had his car keys in his poc

ket.
Officer Butler testified that the defendant was very intoxicated. He said the defendant was staggering, had s lurred speech and was glass y-eyed. He said that the defendant’s blood alcohol content was .34 an d that the defendant failed the field sobriety tests. Officer

Butler said that as he prepar ed to administer a blood alc ohol test, the defendant told him that he had not been driving the car. Offi cer Butler stated that the defendant went back and forth on the issue of who was driv ing the car. He said the defendant initially stated that he was driving. He s aid the defendant later said he had3

consumed too much alcohol to be driving. He said the def endant could not name or describe the person who was driving.
The defendant testified that he draws disability for alcoholism. He admitted that he had a previous conviction for aggravated r obbery. He said that on January 27, he drove to the Silver Spur and drank with some men. He said he became too intoxicated to drive, and he asked one of the men to driv e him home. When asked if he knew the driver, the defendant stated that “a drunk i s a drunk, and I don’t know who he was.” The defendant sai d that on their way home, hi s car was sideswiped. The defendant said he exited his car and went to an apartment to telephone for help. He said that the man driving hi s car ran off and that he had not seen him again.

The defendant testified that the men with whom he was drinking were drinking harder than he was . He admitted to letting a drunk person drive his c ar, but he later stated that the driver looked fine. He said the onl y thing he could remember about the driver was that he had l ong brown hair. He said he did not go back to the Silver Spur to try to find the dri ver because he would be tempted to drink. Upon the foregoing proof, the defendant was convic ted of DUI- aiding and abetti ng.

The defendant contends that the evidence is insufficient to support his conviction. He argues that the state did not prove that the person who drove his car was intoxicated. The state contends that the evidence is s ufficient.

Our standard of review w hen the sufficiency of the evi dence is questioned 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). This means that we do not reweigh the evi dence but presume that4

the jury has resolved all conflicts in the testim ony 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)

.

The statute prohibiting DUI provides as follows: It is unlawful for any

person to drive or to

be in physical control of any automobile or other m otor driven vehicle on any of the publ ic r oads and highways of the state, or on any streets or alleys . . . while: (1) Under the influence of any intoxicant . . .; or (2) The alcohol concentration in such person’s bloodor breath is ten-hundredths of one percent (.10%) or more. Tenn. Code Ann. § 55-10-401(a).Pursuant to Tenn. Code Ann. § 55- 10-201, any person who aids or abets in the commission of driv ing while under the influenc e of an intoxicant as a principal , agent or accessory is gu ilty of DUI.

The defendant contends that the state d id not prove that the driver of the defendant’s car was intoxi cated. However, at trial , the defendant admitted that he let a drunk person drive his c ar. He stated that “a drunk is a drunk, and I don’t know who [the driver] was.” H e stated that the men with whom he was drinking were dr inking harder than he was. The jury obviously accredited this portion of the defend ant’s testimony. In the light most favorable to the state, we hold that the evide nce is sufficient. See Williams v. State , 352 S.W.2d 230, 230 (Tenn. 1961) (holding that the defendant “was the owner of the car, was present on the fro nt seat with [the driver] , permitted him to drive the car, knowing he was drunk, and thus was guilty of [DUI].”).

In consideration of the foregoi ng and the record as a whole, w e affirm the judgment of conviction.

_________________________ Joseph M. Tipton, Judge5

CONCUR:

__________________________ John Everett Williams , Judge

___________________________ Alan E. Glenn, Judge