### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M ay 6, 2003 STATE OF TENN ESSEE v. CHAUN CEY DAUGHER TY Direct Appeal from the Criminal Court for Shelby County

No. 00-06451 W. Fred Axley, Judge

No. W2002-01141-CCA-R3-CD - Filed May 16, 2003

A Shelby County

jury convicted the de

fendant, Chauncey

Daugherty , of driving under the influence, secondoffense. The trial court sentenced him to eleven months and twenty-nine day s and ordered 180 days be ser

ved i n the county workhouse followed by proba

tion. On appeal, the defendant maintains the evidence was insufficient to support the conviction. We affirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERE TT W ILLI AMS , JJ., joined. Robert Little, Maplewood, New Jersey (on appeal), and Darry

l W. Humphrey, Memphis, Tennessee (a t t ri al ), fo r t he ap pe ll an t, Ch au nc ey D au gh er ty. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gib

bons, Distr

ict Attorn ey Genera l; and E. Greg Gilluly , Jr., Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION During the early mor

ning hours of October 15, 1999, while on pa tro l on Hava

na Road in Shelby County, Officer

Darren Boy

ce observed the defendant “passe d out” behind the wheel of a black pickup truck. Officer Boy ce testified the vehicle was parked on a public road; the key s were in the ignition; the engine and headlights wer e on; and the motor was running. The officer stated he reached inside the vehicle and

turned off the engine. He observed a one-quart bottle of C olt 45 malt liquor in the defendant’s lap, removed the bottle, and placed it on top of the ve hicle. Officer Boy ce testif

ied that a

fter sev eral uns uccess f

ul attempts, he finally awoke the defenda nt. The officer stated

he smelled a strong odor of alcohol on the defe ndant’s p erson, a

nd his speechwas slurred. The defendant was “talking out of his head” and “mumbling.” Officer Boy ce-2-

then requested the defendant exit his vehicle and placed him in the back of the patrol car. The officer stated he asked t

he defendant whether he had been dr inking alcohol, and the defendant did not respond. Officer Boyce testified he called the dispatcher and requeste d a DUI office r. He statedthat after the DUI office r arrived, he obse

rved the defenda nt as he pe

rformed a serie s of field

sobriety tests. Officer Boy

ce opined that the def

endant performed “poorly ” on the tests. The defendant refuse d to submit to

a blood-a

lcohol te st. Officer Robert Galison, a

DUI technic ian, testified he a

dminister ed a ser ies of fie ld sobrie ty tests on the defendant. He opined that the defendant pe rformed “poorly” on the te sts and concluded the defendant was intoxicated. The defendant testified that on October 15, 1999, at

approximately 6:00 p.m., he drove to the residence of Michael Williams located on Havana Road. While at Williams’ residence, he drank three to four f

orty -ounce b ottles of C olt 45 malt liquor. The defendant stated that at a pproximate

ly 11:30 p.m., he a

ttempted t

o start hisvehicle , but it

would not start due to a faulty star ter. Williams ha d just left the residence, and the defenda nt waited in his vehicle for Williams to return. The defendant stated he walked to a convenience store whe re he purchased a

beer, and upon returning to his vehicle, he took one drink before falling aslee p. The defendant testified he put the keys in the ig nition of the vehicle and turned on the radio, buthe could not start the vehicle. He stated that when the office r arrived, he had been asleep f or approximately three hours. The defendant

admitted he was intoxicated and acknowledged that he performed

“poorly ” on the f ield sobr iety tests. The defendant stated he informed the office r that the vehicle’s clutch was “slipping” but never mentioned the faulty starter

. The defendant testified that uponbeing r elease d from cu stody

two day s later, h

e retrie ved his vehicle from a po lice impou

ndment lot. However, b ecause the vehicle failed to start, a wrecker towed the vehicle to his residence. The vehicle was repaired two months later. The defendant stated he did not drive the vehicle until it was repaired. Vincent Daugherty , the defendant’s brother, testified he acc ompanied the defendant to the impoundment lot to retrieve the vehicle. He stated the vehicle would not start and was towe d from the impoundment lot to the defendant’s residence. The jury convicted the de fendant of

driving under the influence, second off ense. The trial court imposed an eleven-month, twenty -nine-day sentence, with 180 day s to be ser ved in the county workhouse followed by

probation.-3- SUFFICIENCY The defendant contends the evidence was insuff icien t to s upp ort hi s co nvi cti on f or D UI. Sp ec if ic al ly, he arg

ues the pr oof failed to establish he was in physica l control of the vehicle prior to his arrest. We disagree. A. Standard of Review
In Tennessee, great weig

ht is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state’s witnesses and resolves all conf licts in favor

of the state. Statev. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable infer ences which may

be drawn therefrom. Id. ; Stat e v. Ca bbage , 571 S.W.2d 832, 8 35 (Tenn . 1978). M oreover , a guilt y ve rdict re moves the presumption of innocence which the appellant enjoyed at trial

and raises a presumption of guilt on appeal. State v. Grace , 49 3 S.W.2d 474, 476 (Ten n. 1973). The appe

llant has t

he burde n of over coming t his presumption of guilt. Id. B. Analysis As it is applicable to the case at bar, the DUI statute provides that “[i]t is unlawful for any person to drive or be in physica l control of any a

utomobile or other motor driven vehicle on any of the public roads and highway s of the state . . .” while under the influe nce of an int oxicant. Tenn. Code Ann. § 55-10-401(a)(1).
In determining whether a defendant was in phy sical control of anautomobile, the trier of fact should consider the “totality of

the circumstances.” State v. Lawrence , 849 S.W.2d 761, 765 (Tenn. 1993). The trier of fact may consider numerous factors, including the location of the defendant in relation to the vehicle; the location of the ignition key ; whether the motor was running; the defendant’s ability, but for his intoxication, to direct the use or non-use of the vehicle; and the extent to which the vehicle is capable of operation or movement unde r its own power or otherwise. Id.
In the case at bar, the evidence, a s viewed in a light most favorable to the state, revea ls that Officer Boy

ce observed the defendant’s vehicle parked on Havana Road during the e arly morning hours of October 15, 1999. According to Officer Boy

ce’s testimony, the def

endant was “passed

out” behind the wheel of the vehicle; the key s were in the ignition; the headlights were on; and the motor was running. We conclude that under the totality of the circumstance s, the evidence was sufficient to establish the defendant was in phy sical control of the vehicle. The defendant contends that, contrary to Officer

Boy ce’s te stimony , his vehic le would not operate due to a faulty star

ter. However, this argumen t involves a

n issue of credibi lity , which is within the

purview of the jur y a s triers o f fact. This issue is without me

rit.-4-

Accord ingly , we aff

irm the jud

gment of the trial court.

JOE G. RILEY, JUDGE