IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

 September 19, 2012 Session

STATE OF TENNESSEE v. ANTONIO FREEMAN

Direct Appeal from the Criminal Court for Sumner County

No. 2009-CR-126 Dee David Gay, Judge

No. M2011-02525-COA-R3-CV - Filed October 16, 2012

Defendant/Appellant was arrested and charged with driving under the influence and violation

of the implied consent law. At trial, Appellant and the arresting officer gave conflicting

testimony as to whether Appellant refused to submit to a blood test. The jury acquitted

Appellant of the driving under the influence charge, but the trial court, crediting the arresting

officer’s testimony, found that the Appellant had violated the implied consent law. On

appeal, Appellant argues that the trial court erred in crediting the testimony of the arresting

officer despite the acquittal by the jury. Discerning no error, we affirm. 

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Criminal Court Affirmed

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS,

P.J.,W.S., and DAVID R. FARMER, J., joined.

James B. Hawkins, Gallatin, Tennessee, for the appellant, Antonio Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter and Brent C. Cherry, Senior Counsel,

for appellee, State of Tennessee.

OPINION

I. Background

On September 14, 2008, Defendant/Appellant Antonio Freeman was stopped by an 1

Mr. Freeman is also referred to as Antwan Freeman throughout the proceedings in the trial court.

1

(continued...)
officer of the Gallatin Police Department on suspicion of DUI. Mr. Freeman was

subsequentlycharged with driving under the influence (“DUI”), Tennessee Code Annotated

Section 55-10-401, and a violation of the implied consent law, Tennessee Code Annotated

Section 55-10-406. On February 5, 2009, the Sumner County Grand Jury indicted Mr.

Freeman for both offenses. Mr. Freeman was appointed counsel and pled not guilty to both 2

charges.

A jury trial was held on September 26 and 27, 2011. Gallatin Police Officer Daniel

Steakin first testified. Officer Steakin is a veteran police officer who served as a Marine and

worked at the Pentagon prior to moving to Tennessee. Once Officer Steakin became a police

officer, he attended various DUI training programs, and has worked on over 200 DUI cases

in his career. Officer Steakin testified that he observed a black truck, which was traveling

on Highway 31-E toward Gallatin, cross over the center line of traffic. Accordingly, Officer

Steakin activated his emergency lights, turned his car around, and began pursuing the truck,

which he testified again crossed the center line before pulling over. 

The truck pulled over in a nearby parking lot and Officer Steakin approached the

vehicle. Officer Steakin testified that, upon approaching the vehicle, he noticed the odor of

burnt marijuana emanating from the truck’s open window. Officer Steakin testified that he

asked the driver, Mr. Freeman, for his driver’s license, registration, and insurance

information. Officer Steakin also asked Mr. Freeman to step out of the truck and Mr.

Freeman cooperated. Officer Steakin further testified that Mr. Freeman was unsteady on his

feet in getting out of the car and informed the officer that he had taken muscle relaxers and

pain pills because he had recently had a tooth pulled.

Officer Steakin then asked Mr. Freeman to perform several field sobriety tests. The

tests included a one-leg stand and a nine-step walk and turn. However, Officer Steakin

testified that Mr. Freeman informed him that he would have trouble completing these tasks

due to a prior injury to his leg that made it difficult for him to walk. Indeed, Mr. Freeman

could not successfully perform either field test. Officer Steakin also testified that he asked

Mr. Freeman to perform a finger dexterity test; however, again Mr. Freeman pointed to a

hand/wrist injury (as evidenced by a splint on his hand) that would prevent him from

satisfactorily completing the task. Officer Steakin further testified that, based on Mr.

(...continued) 1

However, in his appellate brief, Mr. Freeman refersto himself as Antonio Freeman; therefore, this Court will

refer to Mr. Freeman by the first name he has chosen to use. 

According to Mr. Freeman’s brief, over the three years between the arrest and the trial, several 2

appointed attorneys either withdrew from the case or were discharged by Mr. Freeman. Mr. Freeman’s

counsel at trial, however, continues to represent him on appeal.

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Freeman’s inability to successfully complete any of the field sobriety tests, his observation

of the truck moving over the center line on the street, Mr. Freeman’s slurred speech, and the

smell of burnt marijuana, Officer Steakin believed that Mr. Freeman was not capable of

properly operating a motor vehicle. Thus, Officer Steakin placed Mr. Freeman in the back

of his patrol car.

Officer Steakin went on to testify that, after two other officers arrived on the scene,

they proceeded to search Mr. Freeman’s vehicle. According to Officer Steakin, the officers

found a small marijuana cigarette in an empty carton of milk in the center console of the

truck. Although Officer Steakin noted the marijuana evidence on his report, he admitted that

the marijuana was not recovered from the scene. Instead, the marijuana cigarette was left

in the truck, which was later driven home by Mr. Freeman’s girlfriend. Officer Steakin

explained the officers’ failure to recover the marijuana by stating that it was not their usual

procedure to recover such a small amount of marijuana, which he described as a “trace

amount” and “very small, very minute, very, very small.” Officer Chris Ford, one of the

officers who arrived on the scene and performed the inventory search of the car, later

testified that the marijuana cigarette was approximately two inches long, and weighed

between two to two-and-a-half grams. Officer Steakin also testified that a field test had been

done to confirm that the substance recovered from the truck was, in fact, marijuana;

however, again the test was not preserved for trial and was not presented as evidence. 

On cross-examination, counsel for Mr. Freeman questioned Officer Steakin about the

video equipment installed in his patrol car. Officer Steakin testified that the video equipment

activates once he turns on his emergency lights and that it automatically records the traffic

stop. However, Officer Steakin testified that the digital data card on his equipment was full

on the night in question and that, as a result, the incident was not recorded. Officer Steakin

further admitted that, in previous sworn testimony, he had stated that he was heading back

toward the police station to download the data from his card. However, at trial, he admitted

that he was not heading toward the police station at the time he observed Mr. Freeman’s

vehicle, but was heading in the opposite direction. Officer Steakin further admitted that he

never informed dispatch that he was en route to the police station due to a full data card;

however Officer Steakin testified that it was not his usual procedure to do so. Officer

Steakin also admitted on cross examination that, on the section of Highway 31-E where Mr.

Freeman was alleged to have crossed over the center line into oncoming traffic, a concrete

barrier existed in the middle of the road that would have prevented Mr. Freeman from

entering oncoming traffic; Officer Steakin explained, however, that he observed Mr.

Freeman cross the center line on portions of the road that were located before the concrete

barrier began. 

For the first time on cross-examination, Officer Steakin also testified to Mr.

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Freeman’s alleged refusal to consent to a blood test to determine his blood alcohol level.

Officer Steakin testified that, after he placed Mr. Freeman under arrest, he asked Mr.

Freeman to submit to a blood test. Officer Steakin testified that he could not recall if Mr.

Freeman offered to perform a Breathalyzer test, but stated that Mr. Freeman refused to

submit to a blood test. According to Officer Steakin, a blood test, rather than a Breathalyzer,

is the usual procedure of the Gallatin Police Department. Officer Steakin further testified on

redirect that he read Mr. Freeman the implied consent form, which states that an individual

may refuse to submit to the blood test but may be subject to consequences for that refusal,

including being charged with a violation of the implied consent law. According to Officer

Steakin, even after being informed of the consequences of his refusal, Mr. Freeman refused

to submit to the blood test and also refused to sign the form indicating his refusal. A copy

of the form, noting that Mr. Freeman refused to sign, was entered into evidence. Officer

Steakin then transported Mr. Freeman to jail. After arriving at the jail, Office Steakin

testified that he again read the implied consent form to Mr. Freeman; however, Mr. Freeman

again refused to submit to the test. 

Mr. Freeman next testified in his own defense. Specifically, he testified that he was

not under the influence of any drugs or alcohol on the night in question. Instead, Mr.

Freeman testified that he had picked up his passenger in Murfreesboro, dropped his son off

with his mother, and stopped at Krispy Creme and Blockbuster on his way back to his

girlfriend’s house. He further testified that he never stated that he had taken muscle relaxers

or pain killers due to a pulled tooth. Mr. Freeman also denied that he or his passenger

smoked any marijuana on the night in question. Mr. Freeman further explained that he did

not veer into oncoming traffic, but merely moved his truck slightly over the line of traffic

in order to avoid a large SUV. Mr. Freeman also testified that Officer Steakin asked him step

out of his vehicle before asking for any identification. According to Mr. Freeman, when

Officer Steakin asked Mr. Freeman to perform the field sobriety tests, Mr. Freeman

explained his injuries and inquired as to whether he could simply perform a Breathalyzer

test. Mr. Freeman further testified that Officer Steakin asked Mr. Freeman to sit in the back

of the patrol car and began searching his truck before placing him under arrest. Mr. Freeman

also testified that, while sitting in the patrol car, he could clearly see an activated green light,

rather than a red light, on the video recording equipment, which Mr. Freeman testified,

without dispute, indicated that the video equipment was working. In addition, Mr. Freeman

could see the scene from a monitor inside the patrol car. Therefore, Mr. Freeman believed

that the video recording equipment was in fact recording the incident. Mr. Freeman further

testified that he never actually refused to submit to a blood test, but that he merely requested

(more than once) that a Breathalyzer test be used instead. Mr. Freeman finally testified that

en route to the jail, he requested that Officer Steakin transport him to the hospital to perform

the blood test, but that Officer Steakin refused. 

-4-
Mr. Freeman did admit, however, that he had previously pleaded guilty to Theft Over

$10,000 in connection with a stolen vehicle, Possession of a Schedule IV Controlled

Substance, for marijuana possession, and Sale of a Schedule II Controlled Substance, for

sale of cocaine. Mr. Freeman denied having committed the crimes, but admitted to pleading

guilty and stated that he had been released from prison in 2008.

Mr. Freeman’s passenger, Gary Pitts, also testified. Mr. Pitts testified that he was not

present when Officer Streakin allegedly read the implied consent form to Mr. Freeman.

However, Mr. Pitts testified that Mr. Freeman was not under the influence of drugs or

alcohol on the night in question. As to the alleged marijuana cigarette, Mr. Pitts testified that

he had been smoking a Black and Mild cigar and that no one in the car had smoked

marijuana. Mr. Pitts admitted, however, that he had previously been convicted of felony

assault and Attempted Aggravated Robbery. Indeed, at the time of the testimony, Mr. Pitts

was in police custody on another charge.

At the conclusion of the testimony, the jury returned a verdict of Not Guilty as to the

charge of DUI. After the jury was polled and excused, however, the trial court found that

Mr. Freeman had violated the implied consent law and ordered that his licence be revoked

for a period of one (1) year. A judgment was filed reflecting the trial court’s finding on

October 5, 2011.

On November 4, 2011, Mr. Freeman, pro se, filed a motion to reverse the judgment

finding him in violation of the implied consent law. On the same day, Mr. Freeman’s

counsel filed a notice of appeal of the trial court’s judgment. The Court held a hearing on

Mr. Freemans pro se motion on November 15, 2011. At the hearing, Mr. Freeman’s counsel

questioned whether the appeal of Mr. Freeman’s implied consent violation was criminal or

civil in nature, whether it should be appealed to the Court of Appeals or Court of Criminal

Appeals and whether Mr. Freeman was entitled to appointed counsel on appeal. The trial

court orally ruled that the matter was civil and that Mr. Freeman was not entitled to

appointed counsel. On November 16, 2011, the trial court signed an order denying Mr. 3 4

Freeman’s motion to reverse the judgment.5

 Despite the trial court’s ruling, Mr. Freeman’s counsel continued to represent him on appeal. 3

Although the order was signed on November 15, 2011, the order was not entered until December 4

15, 2011. However, the record reflects that Mr. Freeman’s counsel approved the order for entry and sent a

copy to the State on November 23, 2011. 

The order also noted that Mr. Freeman was under a previous order of the court not to make pro se 5

filings in the trial court. Thus, the court scheduled a hearing for criminal contempt to be held on December

(continued...)

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II. Analysis

Mr. Freeman raises a single issue on appeal, taken from Mr. Freeman’s brief:

Whether the trial court erred in failing to find that the preponderance of the evidence

establishes and supports the credibility of Mr. Freeman , who was found not guilty of DUI

by a unanimous jury.

 The implied consent law provides, in relevant part:

(a)(1) Any person who drives a motor vehicle in this state is

deemed to have given consent to a test or tests for the purpose

of determining the alcoholic content of that person's blood, a

test or tests for the purpose of determining the drug content of

the person's blood, or both tests. However, no such test or tests

may be administered pursuant to this section, unless conducted

at the direction of a law enforcement officer having reasonable

grounds to believe the person was driving while under the

influence of alcohol, a drug, any other intoxicant or any

combination of alcohol, drugs, or other intoxicants as prohibited

by § 55-10-401, . . .

* * *

(3) Any law enforcement officer who requests that the driver of

a motor vehicle submit to either or both tests authorized

pursuant to this section, for the purpose of determining the

alcohol or drug content, or both, of the driver's blood, shall,

prior to conducting either test or tests, advise the driver that

refusal to submit to the test or tests will result in the suspension

by the court of the driver's operator's license . . . ,

(...continued) 5

5, 2011. No adjudication of this contempt proceeding is contained in the record. The failure to adjudicate

a contempt petition arising after the entry of judgment does not affect the finality of a judgment entered by

the trial court. See Poff v. Poff, No. 01-A-01-9301-CV00024, 1993 WL 73897 at *2 (Tenn. Ct. App. March

17, 1993) (“Contempt proceedings are collateral to and independent of the cases or proceedings from which

they arise. . . . . [C]ontempt proceedings that arise after judgment has been entered . . . do not affect the

finality of the judgment.”). Thus, despite the failure to include any record of the resolution to the contempt

proceeding in the appellate record, this Court has jurisdiction to consider this appeal. See Tenn. R. App. P.

3(a). 

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(4)(A) If such person, having been placed under arrest and then

having been requested by a law enforcement officer to submit

to either or both tests, and having been advised of the

consequences for refusing to do so, refuses to submit, the test or

tests to which the person refused shall not be given, and the

person shall be charged with violating this subsection (a).

Tenn. Code Ann. § 55-10-406. Violation of the implied consent law is not a criminal offense

unless the individual was driving while under a revoked or suspended license due to a prior

DUI conviction or other enumerated offense. See Tenn. Code Ann. § 55-10-406(a)(4)–(5).

A conviction under the implied consent law results in a license revocation for a period of

one year. Tenn. Code Ann. § 55-10-406(a)(4)(A)(i). The determination of whether a driver

violated the implied consent law “shall be made at the same time and by the same court as

the one disposing of the offense for which such driver was placed under arrest.” Tenn. Code

Ann. § 55-10-406(a)(3); see also State v. MacKinnon, No. E2009–00093–CCA–R3-CD,

2011 WL 1460167, at *2 (Tenn. Crim. App. March 30, 2011) (no perm. app. filed) (holding

that the trial judge, rather than the jury, makes the determination of whether the defendant

violated the implied consent law). In this case, the trial court found that Mr. Freeman

violated the implied consent law after the jury had returned a verdict of not guilty on the

DUI charge. Thus, the trial court’s ruling was in the nature of a bench trial. In addition,

because Mr. Freeman was not driving on a revoked or suspended license at the time, the

penalty for violation of the implied consent law was civil in nature, i.e. an administrative

penalty, rather than a criminal sanction. See State v. Pinchak, 277 S.W.3d 912 (Tenn. Crim.

App. 2005) (noting that “the defendant's violation of the implied consent law . . . is not a

criminal offense; it is a civil offense imposing an ‘administrative penalty.’”). Because this

case is in the nature of a civil action, this appeal is properly before this Court. See State v.

Hembrook, No. M2011-01358-COA-R3-CV, 2012 WL 3115208, at *1 n.4 (Tenn. Ct. App.

July 31, 2012). 

Usually bench trials in civil cases are subject to the requirements of Rule 52.01 of the

Tennessee Rules of Civil Procedure. Rule 52.01 states that: “In all actions tried upon the

facts without a jury, the court shall find the facts specially and shall state separately its

conclusions of law and direct the entry of the appropriate judgment.” The Tennessee Rules

of Civil Procedure further provide that the Rules shall apply “in the circuit or chancery

courts in all civil actions, whether at law or in equity, and in all other courts while exercising

the civil jurisdiction of the circuit or chancery courts.” Tenn. R. Civ. P. 1. The Court in this

case is exercising civil jurisdiction by adjudicating the violation of an administrative rule.

Thus, we are of the opinion that the Rules of Civil Procedure should apply in this case.

Indeed, the Court of Criminal Appeals has previously held that violation of the implied

consent law, being a civil matter, is governed by the Tennessee Rules of Civil Procedure.

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See State v. Travis, No. W2004-00476-CCA-R3-CD, 2005 WL 711947, at *3 (Tenn. Crim.

App. March 28, 2005) (citing Tenn. Op. Atty. Gen. No. 95-077 (1995)). Accordingly, the

trial court, in finding Mr. Freeman in violation of the implied consent law, was required to

set forth specific findings of fact and conclusions of law with regard to its ruling. 

The order in this case finding Mr. Freeman in violation of the implied consent law

is contained in a form fashioned for criminal actions. Thus, it includes no findings of fact

or conclusions of law sufficient to satisfy Rule 52.01. In addition, the trial court’s oral

statements at the conclusion of the trial are likewise insufficient to afford meaningful

appellate review of the ruling. This Court has previously held that the General Assembly’s

decision to require findings of fact and conclusions of law is “not a mere technicality.” In

re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May

15, 2009). Instead, the requirement serves the important purpose of “facilitat[ing] appellate

review and promot[ing] the just and speedy resolution of appeals.” Id.; White v. Moody, 171

S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct.

App. 1990). Without findings of fact and conclusions of law “this court is left to wonder

on what basis the court reached its ultimate decision.” In re K.H., 2009 WL 1362314, at *8

(quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn.

Ct. App. April 21, 2004)). However, at a later hearing in which the trial court ruled that the

implied consent violation was civil in nature rather than criminal, the trial court, apparently

aware of the civil rules requiring findings of fact and conclusions of law in bench trials,

endeavored to place his reasoning on the record. The trial court stated:

I find that this is not a criminal matter. If [Mr. Freeman]

wants to pursue [an appeal] on his own he may, but I don’t

think it’s appropriate for you to spend time as his appointed

attorney in a criminal case on a civil appeal. That is the ruling.

Let me state this, if there is an appeal that’s going to be

made here, the Court made this finding after the jury trial. I’m

not going to go over all the proof, but I want the record to

preserve this aspect of my ruling today, . . . I want this set apart

for any purposes of appeal so any reviewing court that’s

reviewing . . . my finding that [Mr. Freeman] refused consent to

take a blood test here. I want this to go up with any of these

documents from this Court.

Now, while I’m on the subject, let me elaborate on that.

There were two witnesses that were called at trial that put this

issue in a perspective. It [sic] was Officer Daniel Steakin. The

record reflects that he was a Gallatin Police Officer. He was a

marine from 1997 to 2001. At 9/11/2001, he was in the

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Pentagon building. He was an officer with Mt. Juliet Police

Department. He was hired by the Gallatin Police Department.

He’s had training, DUI, and he’s been to the DUI Instruction

School. His testimony was after the arrest, [Mr. Freeman] was

read the Implied Consent Law, and he refused a blood test. [Mr.

Freeman] stated he didn’t want to take a blood test, I have [the

unsigned Implied Consent form] here to make an exhibit to this

particular ruling where [Mr. Freeman] refused to sign.

I also considered the contrary testimony of [Mr.

Freeman]. But I go further to state that Officer Steakin was

further asked about the Implied Consent Form, and he stated he

read the ImpliedConsent Formto [Mr. Freeman]two times, and

he refused to sign. 

I considered the credibility of [Mr. Freeman]. I have to

weigh that credibility in making a ruling of this type. I don’t

find [Mr. Freeman] to be credible on this particular point, and

the record should reflect that. [Mr. Freeman] is a convicted

felon, and he was convicted of Theft over $10,000, Possession

of Marijuana for Res[ale], and S[ale] of [a] Schedule II

[Controlled Substance]. He testified that at no time did the

officer ask him to take a blood test, that the officer was asked

by [Mr. Freeman] . . . to take the test, the officer would not give

him a blood test.

I find that Officer’s Steakin’s testimony is credible

testimony. I find that [Mr. Freeman]’s testimony is not

believable on that issue. 

Now, since this is a civil matter we’re not talking about

beyond a reasonable doubt. I find the proof is clear and

convincing that [Mr. Freeman] refused the consent and refused

to take a blood test, and he refused to sign the Implied Consent

Form. That will be the order of the Court. . . . [A]ttach that as

a part of my ruling on this particular issue. 

While we note that the better practice is to set forth findings of fact and conclusions

of law in a written order, the question of whether Rule 52.01 of the Tennessee Rules of Civil

Procedure applies in implied consent cases has not been presented before. Here, the trial

court directed its oral ruling be included in the appellate record in an effort to explain its

reasoning in finding that Mr. Freeman violated the implied consent law. This Court has

previously held that we may “soldier on” to consider the issues raised on appeal when the

court's decision is “readily ascertain[able].” Burgess v. Kone, Inc., No.

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M2007–0259–COA–R3–CV, 2008 WL 2796409, at *2 (Tenn. Ct. App. July 18, 2008). The

oral ruling sets forth appropriate findings of fact and conclusions of law that detail the trial

court’s reasoning. Therefore, we conclude that the oral ruling is sufficient to afford

meaningful appellate review in this case. See In re K.H., 2009 WL 1362314, at *8.

We next consider the substantive argument raised by Mr. Freeman. Essentially, Mr.

Freeman argues that the trial court erred in crediting the testimony of Officer Steakin over

Mr. Freeman’s testimony when the jury acquitted Mr. Freeman of the DUI charge. Mr.

Freeman argues that the acquittal “may properly [be] said to discredit the testimony of the

witnesses for the State, and may properly be said to resolve all conflicts in favor of the

theory of the defense.” Mr. Freeman also argues that “[w]hen an accused challenges the

sufficiency of the evidence, this Court’s standard of review is whether, after considering the

evidence in the light most favorable to the State, ‘any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Respectfully, we disagree. 

As discussed above, this is a civil action reviewing the trial court’s decision to impose

an administrative penalty. Therefore, the State’s burden of proof in the trial court was to

show that Mr. Freeman violated the implied consent law bya preponderance ofthe evidence,

rather than beyond a reasonable doubt. See State v. Albright, No.

E2007-02671-CCA-R3-CD, 2008 WL 5130691, at *6 & n.2 (Tenn. Crim. App. Dec. 8,

2008) (noting that the proper standard of proof is a preponderance of the evidence).

In addition, the determination of whether Mr. Freeman violated the implied consent

law was properly made by the trial court rather than the jury. See State v. MacKinnon, No.

E2009–00093–CCA–R3-CD, 2011 WL 1460167, at *2 (Tenn. Crim. App. March 30, 2011)

(no perm. app. filed) (“The Code gives to the trial court, not a jury, the authority for

determining whether the noncriminal implied consent law was violated.”). Because thisissue

was tried by the court, sitting without a jury, this Court conducts a de novo review of the trial

court's decision with a presumption of correctness as to the trial court's findings of fact,

unless the evidence preponderates against those findings. Wood v. Starko, 197 S.W.3d 255,

257 (Tenn. Ct. App. 2006). For the evidence to preponderate against a trial court's finding

of fact, it must support another finding of fact with greater convincing effect. Walker v.

Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc.

v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This Court

reviews the trial court's resolution of legal issues without a presumption of correctness.

Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001).

In this case, the trial court’s ruling primarily rested on the credibility of Officer

Steakin and Mr. Freeman’s lack of credibility. Mr. Freeman argues that this was in error

because the jury’s verdict of not guilty impliedly credited the testimony of the defense

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witnesses, including Mr. Freeman. We again respectfully disagree. The fact that the jury

failed to find that the State had proven that Mr. Freeman committed the offense of DUI

beyond a reasonable doubt is a determination separate and distinct from whether the State

proved that Mr. Freeman violated the implied consent law by a preponderance of the

evidence. 

In our view, this case rests on the relative credibility of Officer Steakin and Mr.

Freeman. Indeed, the only evidence regarding whether Mr. Freeman was asked and refused

to submit to a blood test is the conflicting testimony of Mr. Freeman and Officer Steakin.

Simply put, Officer Steakin testified that he asked Mr. Freeman to submit to a blood test and,

despite telling him the consequences of refusing, Mr. Freeman refused to consent. In

contrast, Mr. Freeman testified that he was never asked to submit to a blood test, and that

he even unsuccessfully requested that Officer Steakin take himto the hospital so that a blood

test could be performed. The trial court expressly stated that Officer’s Steakin’s testimony

on this issue is “credible testimony,” in contrast to Mr. Freeman’s testimony, which the trial

court viewed as “not believable.” When the resolution of the issues in a case depends upon

the truthfulness of witnesses, the trial judge who has the opportunity to observe the manner

and demeanor of the witnesses while testifying is in a far better position than this Court to

decide those issues. In re Arteria H., 326 S.W.3d 167, 176 (Tenn. Ct. App. 2010) (citing

McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995)). If the trial court’s factual

determinations are based on its assessment of witness credibility, this Court will not

reevaluate that assessment absent clear and convincing evidence to the contrary.” Franklin

County Bd. Of Educ. v. Crabtree, 337 S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones

v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).

Mr. Freeman’s brief points to several facts, which he argues undermine Officer

Steakin’s credibility. These include: (1) Officer Steakin’s prior statement that he was

returning to the police station to empty his video data card, when he was in fact heading in

the opposite direction; (2) Officer Steakin’s failure to preserve any evidence of the

marijuana allegedly found in the truck; (3) Officer Steakin’s statement that the marijuana

found was “very very little,” while another officer described it as two to two-and-a-half

grams; (4) Officer Steakin’s failure to preserve the field test proving the substance found in

the truck was marijuana; (5) Officer Steakin’s statement that he observed Mr. Freeman’s

truck cross the center line more than once, when at least part of the road was divided by a

cement barrier; and (6) Officer Steakin’s statement that the video device did not record the

incident due to a full data card even though Mr. Freeman testified that he saw a green light

indicating that the equipment was working properly. While we agree that some of these facts

call into question Officer Steakin’s credibility, other facts in the record give weight to his

testimony, including his long police and militaryservice and DUI training. In addition, other

facts in the record weigh against Mr. Freeman’s credibility, including his felony convictions

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for theft and possession and sale of drugs. Thus, there is evidence in the record that both

supports and undermines the trial court’s credibility findings. This Court, however, is not

permitted to re-weigh the credibility of the witnesses and come to our own conclusion. See

Crabtree, 337 S.W.3d at 811. Mr. Freeman points to no facts in the record from which we

can conclude that the trial should have given greater weight to Mr. Freeman’s testimony. 

From our review of the evidence, Mr. Freeman has failed to submit clear and convincing

evidence that the trial court’s credibility determinations are erroneous.

In the argument section of his brief, Mr. Freeman further argues that the State failed

to show that Officer Steakin had “reasonable grounds” to believe that Mr. Freeman was

intoxicated in order to justify the requested blood test. As the State points out, however, the

Court of Criminals Appeals has stated that “reasonable grounds” is “not an element of the

offense” of violation of the implied consent law. State v. Prater, No.

M2009-00527-CCA-R3-CD, 2010 WL 4674288, at *4 (Tenn. Crim. App. Nov. 16, 2010).

Instead, the Court of Criminal Appeals has stated that:

In this case, to support a conviction for violation of the implied

consent law, the State must have proven the existence of the

following essential elements: (1) that the defendant had been

driving a motor vehicle in this state; (2) that the defendant had

been placed under arrest and had been requested by a law

enforcement officer to submit to a test for the purpose of

determining the alcohol and/or drug content of his blood; (3)

that the defendant had been advised that refusal to submit to the

test or tests will result in the suspension by the court of the

driver's operator's license; and (4) that the defendant refused to

submit to such test or tests. 

Prater, 2010 WL 4674288, at *4 (citing Tennessee Pattern Jury Instructions-Criminal §

38.17 (defining the offense of refusal to submit to a test while driving on cancelled,

suspended, or revoked license)). Regardless, Mr. Freeman did not raise the State’s failure

to prove “reasonable grounds” as an issue in the statement of the issues section of his brief.

Therefore the issue is waived. See Childress v. Union Realty Co., 97 S.W.3d 573, 578

(Tenn. Ct. App. 2002) (“Generally, an issue argued in the body of the brief, but not

designated as an issue will be considered waived”).

Finally, we consider whether the State has shown, by a preponderance of the

evidence, that Mr. Freeman violated the implied consent law. As discussed above, because

Mr. Freeman failed to show clear and convincing evidence to the contrary, we are

constrained by the trial court’s credibility findings. Consequently, we must credit the

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testimony of Officer Steakin over the contrary testimony of Mr. Freeman. It is undisputed

that Mr. Freeman was driving the truck on Highway 31-E in Gallatin, Tennessee when he

was stopped by Officer Steakin. According to Officer Steakin’s testimony, he twice read

the implied consent form to Mr. Freeman after he was placed under arrest and twice asked

Mr. Freeman to submit to a blood test. The implied consent form states:

If you refuse to submit to either o[r] both of these tests, they

will not be given. As required by State law I must advise you

that if you refuse to submit to either or both tests, you will also

be charge[d] with the offense of violation of the implied

consent law. If the judge finds you guilty of this separate

offense your driver’s license will be suspended for a period of

at least one year. 

According to Officer Steakin, Mr. Freeman twice refused to submit to a blood test despite

this warning. Thus the evidence shows that: (1) Mr. Freeman had been driving a motor

vehicle in this state; (2) Mr. Freeman had been placed under arrest by Officer Steakin, who

requested that Mr. Freeman submit to a test for the purpose of determining the alcohol

and/or drug content of his blood; (3) Mr. Freeman was read the implied consent form, which

advised that refusal to submit to the test or tests could result in suspension of Mr. Freeman’s

driver’s license; and (4) Mr. Freeman refused to submit to such test. See Prater, 2010 WL

4674288, at *4 (citing Tennessee Pattern Jury Instructions-Criminal § 38.17). Accordingly,

we must agree with the trial court that the State has shown, by a preponderance of evidence,

that Mr. Freeman violated the implied consent law.

For the foregoing reasons, we affirm the decision of the Criminal Court of Sumner

County, Tennessee. The costs of this appeal are assessed to Appellant Antonio Freeman,

who is proceeding as a pauper in this appeal. 

_________________________________

J. STEVEN STAFFORD, JUDGE

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