# FILED
October 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9811- CR-00446 ) Appellee, ) ) ) WILSON COUNTY VS. ) ) HON. J. O. BOND WANDA E. DAVIS, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)

FOR THE APPELLANT : FOR THE APPELLEE : HUGH GREEN PAUL G. SUM MERS 100 Pub lic Square Attorney General& Reporter Lebanon, TN 37087 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 TOM P. THOMPSON, JR. Distri ct Attorney General JERRY HUNT Assistant Distri ct Attorney 119 S. C ollege S t. Lebanon, TN 37087
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

The appellant, W anda E. D avis, was convicted by a W ilson County jury of
one (1) count of

drivi ng under the i nfluenc e, second offense. She was fined $600, and th e trial c our t sentenced her to eleven ( 11) months and twent y-nine (29) days in jail ; all but 45 days of the sentence was s uspe nded . On ap peal, the appell ant rai sed the followi ng issues for t his Court’s rev iew: (1) whether the trial cou rt err ed by faili ng to dismiss the case becau se of alleg ed defe cts in the ind ictmen t; (2) whethe r th e trial court erre d in adm itting the testim ony of a state’s witness when t he appellant was not provided with pret rial discovery information relating to the witness; (3) whether the trial cou rt erred b y restric ting the appe llant’s cross examination of

Trooper Vaughn; (4) whethe r the trial cou rt erred by re fusing to a dmit tes ti mo ny concerning a statementmade by Trooper Vaughn to t he appellan t; (5) whether the tri al court erred in denyi ng a mistri al after the state condu cted imp roper qu estioning of the app ellant; (6) whether the state’s cl osing argument co nst ituted pr osecutorial misconduct which warranted a mist rial; and (7) whethe r the evide nce is su fficient to sup port th e app ellant’s convicti on. After a thorough re view of t he rec ord, we conc lude th at there is no re versible error and , therefore , affirm the ju dgme nt of the trial co urt.

FACTS

In the early morni ng of Janua ry 23, 199 7, Hen ry Kerr wa s traveling o n Mt. Juliet Road when he noticed a vehicle i n a ditch. When Kerr stopped to assist-3-

the motorist, the appell ant got out of the vehi cle and asked Ke rr if he would push her vehicle from the ditch. K err refuse d the ap pellant’s re quest b ut offered to call
a wre cke r on ce h e ar ri ved at h is home . Immed iately upon arriving hom e, Kerr contac ted Oc o Ham blen, wh o owne d a wrec ker service
. Once Hamblen arrived at the scene, he hooke d his wrecker to t he appellan t’ s vehicle a nd pulled i t from the ditch. Hamblen then asked the appellant

to g et in the veh icle and e ither push down o n the bra kes or sh ift into park. Instead, the appell ant shif ted the vehicle into gear, allowing i t to rollback into the ditc h. After

Ham blen p ulled th e vehic le from the ditch a second time, the appellant

got out of her vehicl e and be g an to complain t hat Hamblen had dama ged he r vehicle. H amble n respo nded b y calling the police. State Trooper Jack Vaughn arr ived on the s cene about 12: 25 a. m. The appellant

informed hi m that she was dri ving on Interstate 40 when she took the
wron g exit and, while tr ying to make a U-t urn, drove her vehicl e into theditch
. Vaughn noticed an open beer can in the vehicle and askedthe appellant if she had been d rinking. T he app ellant ack nowled ged th at she had consumed a coup le of beers that eve ning. V augh n adm inistere d three field sobrie ty tests, a ll of which the appel lant perf ormed unsati sfactorily. Based on his observations, Vaughn concluded that the ap pellant was under the i nfluence of an intoxi cant and placed herunder a rrest. He th en ask ed her to subm it to a blood alcohol te st, and the appellan t consen ted. The blood alc ohol test re sults revea led that th e appellan t’s blood a lcohol leve l was 0.21 %. The appellant

was indicted in a three-count indict ment charging alterna tive counts of drivi ng under the influence of an intoxicant, dri ving under the infl uence of an intoxi cant, second of fense, and driving wit h a blood alcohol content above .10. At tri al, the ap pellant testif ied that s he had not bee n drivi ng her car that-4-

night, but had m et a ma n nam ed “Allen ” at a local bar w hom s he had allowed to drive her autom obile. They we re drivi ng on Mt. Juli et Road when they attempted to turn aro und in a residen tial driveway , and the c ar beca me stu ck. “Allen” left to seek a ssistanc e, but nev er returne d to the sc ene. The jury returned a ver dict of guilty

for dri ving u nder the infl uence of an intoxicant, second offense. The trialcourt sen tenced the app ellant to eleven (11) months and twenty- nine (29) day s, with al l but 45 days suspended. From her convic tion, the appe llant no w bring s this ap peal.

ALLEGED INDICTMENT DEFECTS

The appellant clai ms that the indictment contai ned deficienci es whi ch were undu ly prejud icial. First, she asserts t hat the indictment was defective because Count Two of the i ndictment, charging her with DUI “second offense” could not be taken into t he jury r oom during deli berations. She further contends that

the indict ment was defecti ve because she could not be convic ted ofdrivi ng underthe influence of an intoxicant i n Count One and drivi ng with ablood alcoholcontent above the legal li mit in Count Three because such counts are duplicitous. Appellant ha s failed to provide this cou rt with authority in support of he r argum ent. Wh en an app ellant fails to cite appropriate au thority in support of his
or her issue on app eal, that issu e is waived . Tenn. C t. Crim . App. 10 (b); State v. Alvar ado , 961 S.W .2d 136, 148 (Tenn. Crim . App. 1996 ). Furthermore, defects i n the indi ctment must be rais ed prio r to trial, or will be dee med w aived. Te nn. R. C rim. P. 12 (b)(2); State v. Kennedy , 649 S.W.2d 275, 279 (Tenn. Crim. App. 1982). Appell ant fail ed to r ai se the issue of the indictm ent’s sufficiency prior to trial . Although t his Court “ may not iceat a ny t ime-5-

during the pend ency of the pr oceedings the defen se that the indictme nt fails to show jurisdiction o r fails to charge an offense,” see Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998), the appell ant does not chall enge the tri al court’s jurisdi ction or
com plain thatthe indictm ent fails to charge an offense. As a resul t, the appel lant has w aived th e issue on this basis a s well. This issu e is withou t merit.

PRETRIA L DISCOVERY

In her next iss ue, the ap pellant co ntends that the tria l court erred by ad mittingthe testi mony of Norman Kerr when the st ate fail ed, during pr

etrial discovery, to pro vide th e defense wit h Kerr’s addr ess and Kerr’s hand-writ ten notes regarding t he incident . The ap pellant claims that as a result

of being denied access to the r equested informati on, she was unfairly prejud iced b y Kerr’s testimony and was denied a full and fair cross-examinati on of the witness. Wi t h regar d to the state’s failure to provid e the d efens e with K err’s address, the stateprovided t he def ense wit h the na mes a nd add resses of its witnessesduring pret rial di scovery. The state li sted Kerr as a witness, but did not providehis address becaus e the state did not have that inf ormation at t hat time. The state was, however, abl e to obtai n his addr ess a pproxim ately one month prior to trialwhen a subpoena requiring Kerr’ s presence at t rial was i ssued. The state i s not requi red to fur nish th e app ellant w ith inform ation e asily obtain able by exe rcisin g reaso nable d iligence. See State v. Dickerson , 885 S.W.2d 90, 92 (Tenn . Cr im. App. 1993 ). The defen se wa s provid ed with Kerr’s
name during pret rial di scovery. Once a name has been acquired, t he a dd ress of the indi vidual i s usually obtainabl e with reasonab le dil igence. The ap pel lant1 A statement is defined as: (1) A writ

ten statement made by the witness t hat is si gned or otherwise adopted or approved by the witness; or (2) A subs tantia lly verb atim recita l of an oral s tatem ent m ade by the witne ss th at is recorded contemporaneously wit h the making of the or al statement and that i s contained in a stenographic, mecha nical, electrical,or other recording or a transcription thereof. Tenn . R. Crim . P. 26.2(g ); see also State v. Payton , 782 S.W .2d 490, 494 (Tenn. Crim . App. 1989). -6- has failed to show that sh e made any effort in addition to the p retrial discovery motion to ob tain the addres s of Mr. Kerr. In any event, the appell ant has not established how shewas prejudiced by the state’s failure to pro vide the w itness’ ad dress. Defense counsel conducted
a vigorouscross-examinat ion ofKerr and impli ed that Kerr would have reasons t o be b iased in favor of ot her state witnesses and against the appel lant. Af ter being placed u pon no tice that Ke rr might te stify, the defe nse wa s clearly ab le to prepare fo r the witnes s’ test imony. Therefor e, there i s not preju dice to t he defense shown in t his record. The appellant

also clai ms that she was unfairly prejudiced because the state failedto provide Kerr’s hand-wri tten notes. Kerr drafted a summary of the events he witnessed t he nightof the a rrest to a id him during hi s testi mony. The appellant

claims that

she has a righ t to pretrial di scovery of these notes because she requested “written . . . summar i es of state ments made by the de fendan t to any individual co ncernin g any rele vant asp ect of this case” and Kerr’ s notes allege dly containe d statem ents made by the appell ant on relev ant aspects of

the
case. Th e trialcourt found that Kerr’ s handwritten notes did not constit ute a “statem ent,” and the appel lant was e ntitl ed to revi ew these notes onl y if t he defens e reque sted them at the con clusion o f Kerr’s direc t testimon y. It is arguabl e whether Ker r’s h andwritten notes to ai d in his testimony constitute a “statem ent.” 1 However, even if thes e notes could be considered a2 The appellant claims that the state was obligat ed to provi de the notes prior to trial b ecause she requested “wri

tten . .. summaries of statements made by the defendant to any indi vidual co ncerning any relevant aspect of this case” in her pretri al discove ry motion whi ch was granted by the tri al court.She argues that the no tes con tain statem ents m ade by the appellant o n relevan t aspec ts of the ca se. However, the r

ecord does not suppor t thi s contenti on, as there is no indication as t o what infor

mation the notes contai n. -7- “statem ent,” the statewas not required to produce s uch statem ent until after Kerr had testified on dire ct examina tion. According to Tenn. R . Crim. P. 16(a)(2 ), statem ents made by state wi tnesses are not subject to rules of disclosur e. Under Tenn. R. Crim. P. 26. 2, tri al counsel may examine a witne ss’ stat ement after directexamination. See State v. Caughron , 855 S.W .2d 526, 535 (Tenn. 199 3). No obligation exists for the state to produce a witness’ statement until af ter direct examination of the wit ness. 2 Id. This issu e has n o merit.

RESTRI CTION ON CROSS EXA MINAT ION

The appe llant co ntend s that th e trial court erred by refusing her t he opportu nity to fully

and fairly cr

oss exa mi ne State Trooper Jac k Vaughn. The appellant

claims th at the witne ss was biased d ue to p ressures fr om an internal affairs investi gation. Consequent ly, t he appellant argues that she shou ld ha ve been afforded the opportunity to question this wi tness regarding his bias. The appellant

and Vaughn spoke on the day t hat her prel iminary hearing
was scheduled, and t he appellant informed hi m that she had not been drivi ng her vehicle on the night

of the i ncident. She explained t hat a man she picked up from a bar (“Al len”) wasthe driver, but she did not tell the offi cer this informati on on the night of the inc ident because she was embarrassed. Vaughn told th e appellant

that her explanation was sincere an d rea sonable. Short ly after her-8-

conversati on with Vaughn, the appel lant inf ormed her former boy friend that she believed t he charges against her would be droppe d by the state. Somet ime later, the ap pellan t’s former boyf riend contac ted the Tennessee Highway Patrol in an effort to gen erate an interna l affairs in vestigat ion, suggesting that t he appell ant and Vaugh n we re “going to conspire to fix t he case.” S ubseque ntly, Vaughn tes tified for the grand jury, and th e grand jury returned the pres ent indictm ent. At trial, Vau ghn te stified o n cros s-exa mina tion tha t he be lie ved t he appe llant’s explana tion of the inc ident w as since re and seemed reasonable. When defense counsel attempted to question Va ughn abo ut the internal affairs i n vestigat ion which may have aff ected the of

ficer’ s testi mony before the gr and jury, the stateobjected to the appell ant’s quest ioning. After a j ury out hear ing, the trialcourt sustained the obj ection f inding t hat the informa tion was irre levant. “Because an assessment of whet her a piece of ev idence is r elevant requiresan unde rstand ing of th e cas e’s theory and other evidence as wellas a familiarity with the evidencein questio n, appe llate courts give grea t deferen ce to
a trial judge’s decision on relevance issue s.” State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 199 5) (quoting N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence § 401.5 (2d ed. 1990)). For this r eason the contr

ol of cross examinat ion of wit nesses is completely wit hin the trial court’s discr etion and will not be i nterfered with absent a cl ear showing of abuse of d iscreti on. State v. Harris , 839 S.W .2d 54, 72 (T enn. 1992 ). The trialcourt determined that tes t imony re garding the investig ation into Vaug hn’s action s whic h prec eded his grand jury testimony

was irrel evant to t he jury’s determina tion at trial. W e agre e. Clea rly, Office r Vau ghn h ad pro bable
cause to arres t the ap pella nt for d riving und er the influe nce of an intoxicant,-9-

notwithstanding the appe llant’s subsequent self-servi ng statement t hat she was not drivi ng o n the nigh t of her ar rest. Fur ther, t he distri ct attorney, not Off icer Vaughn, made the deter mination to subm it the case to the gran d jury. Th e decision whether to pr osecute rests entirely withi n the discr etion of t he d is trict attorney. See State v. Sup erior O il , I nc. , 875 S.W .2d 658, 660 (Tenn. 199 4); Quillen v. C rockett , 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5). In addition, a lthough the app ellant insists that Vaughn w as im prope rly i nfluenced by the in ternal a ffairs inve stigatio n, the re cord d oes n ot sup port this contention
. Vaughn testi fied in a pretri al hearing that he le arned of the investi gation after

he testi fied before thegrand jury . Further more, Vaughn denied giving the appellant

any indication that he wo uld recom mend tha t the grand jury not return an indictm ent in this ca se. Th e facts sur rounding the i nternal af fairs i nvestigat ion into Vaugh n’ s actionswas irrel evant to t he jury’ s determinati on of wh ether the appel lant was drivi ng under the in fluence of an intoxica nt in the early morn ing hours of Ja nuary 23. Moreover, t he record doesnot su pport th e app ellant’s assertio ns that Off icer Vaug hn’s testimony befo re the grand ju ry was improper ly inf luenced and that the prosecution against her would have been di smiss ed had the investigati on not occurred. Therefore, the trial court did not abuse i ts discr etion in refusing t

o allow the appell ant to cros s-examine Vaughn regar ding the i nvestigat ion. This issu e is withou t merit.

APPELLANT’ S TESTIMONY REFUSED

The appellant

asserts t hat the trial court erred by not

allowin g the appell ant to testif y as to whether

Vaughn expressed that he believed t hat the appellant was-10-

not driv ing on thenight of the inci dent. When the appellan t attemp ted to testify thatVaughn stated th at he personal ly beli eved her, t he state ob jected to the question, and the trial court sus tained the objection
. However, ignoring the trial court’s ruling, the appell ant stated, “he said hebelieved me.” The trialjudge then gave curative instruct ions asking th e jury to disre gard the appellan t’s statem ent. Initially, this Co urt note s that th is issue was not pr esented in the a ppella nt’s motion for new trial. If an all eged error is not properl y raised i n a motion for new trial, the issue is waived . Tenn. R. A pp. P. 3(e); State v. Caughron , 855 S.W.2d at 538. In any ev ent, the arrestin g officer’s personalbelief concerning t he truthfu lness of a sta teme nt ma de by th e acc used is irrel evant. The standard of review for a tri al court’s d etermin ati on of relev ancy is an abuse of

discreti on standard. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997). The trial court did not abuse i ts discr etion in refusing t

o allow th e testimony i nto evidence. Moreover, the ap pellan t certain ly was n ot preju diced by the tr ial cou rt’s ruling. On cross-examinat ion, Vaughn repeatedly test ified t hat t he appellant appe ared s incere when she e xplaine d that s he wa s not d riving he r autom obile
on the night o f her arres t and that h er story se emed reason able. Thus, the jury
was allowed to hear tha t t h e office r believed that the appellant’ s version of the events was si ncere. This issu e has n o merit.

IMPROPER QUESTIONING BY STATE

In appellant’s next

issue, she asserts t hat the trial court should ha ve granted a mistri al when the pros ecutor questi oned the appell ant as to why s he did not inform Vaughn at the ti me of her arrest that she was not dri ving the-11-

vehicle. She claims that such que stioning was u nduly p r ejudici al, and th e curative instructi on provided by the tri al court was insuff ici en t to cure t he prejudicia l effect. Du ring cross examinat ion, the assistant distri ct attorney asked th e appellant

why she fail ed to info rm Vaughn that she was not drivi ng the vehicl e at the time of

her arrest . Trial counsel requested a bench conference andmoved fora mistrial ba sed up on the ina ppropria te questioni ng. The tri al court deni ed the appe llant’s motion for a mistrialbut instructed the jury as foll ows: “The d efenda nt, upon being advi sed of consti tutionalrights has a right t

o rely up o n those rights withou t any further question ing from the officer.” The decision of whether to grant a mist rial r ests wit hin the sound di scretion of the trial cour t. State v. S mith , 871 S.W .2d 667 , 672 (T enn. 19 94); State v. Mc Kinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Thi s Court wil l not disturb that deci sion absent a finding of abuseof discretion

. State v. Adkins , 786 S.W.2d 642, 64 4 (Ten n. 1990 ); State v. Hall , 947 S.W.2 d 181 , 18 4 (Te nn. Cri m. A p p. 1997). The burden of establi shing the necess ity for mistri al li es with th e party seeking it. State v. Will iams , 929 S.W.2d 385, 388 (Tenn. Cr im. App. 1996). In making this d eterm ination , “no ab stract fo rmula shou ld be m echa nically applied, and all ci rcumstances should be taken into acco unt.” State v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State , 403 S.W.2d 750, 753 (Tenn. 19 66)). It is wellestabli shed that a pr osecutor’s

comment on an ac cuse d’s exe rcise of his privi lege ag ainst self-inc rimination violates bo th federa l and state constituti ons. State v. Hale , 672 S.W .2d 201 , 202 (T enn. 19 84); State v. Thomas , 818 S.W.2d 350, 364 (Tenn. Cri m. App. 1991). However , the appel lant explained on direct e xamin ation th at she did no t tell the offi cer that sh e was not-12-

drivi ng because she did not be lieve she shou ld talk to the officer a ft er he had read her Miranda rights andplaced her under arrest. She testified, “I mean, he read me my righ ts, and it said that I didn’t have to say anything else, so I was just

-- I just didn’ t say any

thing e lse.”

Fu rther, the questi oning was li mited, and t he trial court instructed the jury t hat the appel lant was not required to speak to the officer. In light of the lim ited natu re of th e offending questioni ng and the tri al
c ourt’s prompt cu rative instruction, the trial court did not a buse its discre tion i n refusing to gran t a mis trial. See State v. Dick , 87 2 S. W.2d 9 38, 944 (Ten n. C ri m. App. 1993 ). The appellant

also chall enges the suff iciency of the curativ e instruc tion given by the trial co urt. However, we concl ude that theappellant has waived her right to appeal the issue of whetherthe trial judge ’s instruction was su fficient to preventundue prejudice. “If a party fail s to request a cu rative in structio n, or, if dissati sfied with the i nstruction gi ven and does n ot reque st a mo re com plete instruc tion, the party e ffectively waives th e issue fo r appellate purposes .” State
v. Griffis , 964 S .W .2d 57 7, 599 (Ten n. Crim App. 19 97); see also State v. Leach , 684 S.W .2d 655, 658 (Tenn. Crim . App. 1984 ). During tr ial theappellant failed to request a more complete instruc tion by t he trialcourt. Therefore, becaus e the appellant

did not contest the suff iciency of the instructi ons during t rial, the appellant

has waived any co mplaints wi th regard to the tri al court’s curative instruct ion. This issu e is withou t merit.-13- STATE’ S CLOSING A RGUMENT

The a ppellant nex t alleges th at the trial cou rt erred by fa iling to gran t a mistrialupon the pro secutor m aking an improper remark dur ing closing argum ent. Dur ing i ts rebuttal closi ng argument, the assistant distri ct attorney made the following s tateme nt: I do know that the o fficer wrote down h ere from he r testimony, her statementto him that

night that she was dri ving the car . He believes thatshe wa s reaso nable a nd he b elieves sh e was te lling the truth that night. The appellant objec ted, on the grou nds that there was n o proo f of this fact. The trialcourt over ruled the obj ection stating, “ [t]hi s is argument . . . . What you al l say is not evidence. ” The appellant claims that

this remark was imprope r and constitute s prose cutorial m iscondu ct. “Trial judge s are a ccord ed wid e discr etion in contro l o f the argu ment.” State v. Zirkle , 910 S.W.2d 874, 888 (Tenn . Crim. A pp. 199 5). Furthe rmore , both the state and the defense are affo rded w ide latitu de in arguing thei r cases to t he jury. State v. Bigbee , 885S.W.2d 7 97, 8 09 (Te n n. 1994 ); State v. Zirkle , 910 S.W.2d at 888. However , when the prosecuti on’s argument goes bey ond that wide lat itude a fforded , the tes t to dete rmine wheth er reve rsal is re quired is “whether

the impropri ety ‘af

fected the verdict

to the prej udice of t he defen dant.’” State v. Bigbee , 885 S.W.2d at 809 (quot ing Harrington v. State , 215 Tenn. 338, 385 S.W .2d 758, 759 (1965)). In reviewing a clai m of prosecutorial misconductduring cl osing argum ent, we are guided by such factors as: 1. The conduct com plaine d of view ed in context and i n light of the facts and ci rcumstances of t he case. 2. The curative m easure s unde rtaken b y the cou rt and the prosec ution.-14- 3. The intent of the prosec ution in m aking the improp er statem ent. 4
. The cum ulative e ffect of th e imp roper cond uct an d any o ther er rors in the reco rd. 5. The relat ive str

ength or weakness of the case. Judge v. State , 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ). We do no t believe that the prose cutor’s remark was impro per. Certainly, it is a logi cal inference that t he officer believ ed that the appellant was drivi ng when he arrested her for dri ving under t he influ ence. Additio nally, this remark
was mad e in r esponse to defense counsel’s ar gument that theofficer instead believed the app ellant’ s ot her versi on of the event s that “Al len” was driving the
car. In any event, after defense counsel objected to the remark, the trial court stated in the jury’ s presence that closing argum ents are not evide nce. In addition, in its jury char ge the tri al court further instructed the jury that “what

the attorneys say to you is not evide nce an d you ca nnot rely o n their state ments to you as evid ence .” The ju ry is pres ume d to ha ve follow ed the trial cou rt's instruction s. State v. Butler , 880 S.W .2d 395, 399 (Tenn. Crim . App. 1994 ). This issu e has n o merit.

SUFFICI ENCY OF THE EVI DENCE
Finally, the ap pellan t challe nges the su fficie ncy of the convicti ng evidence. When an accused challenges the suffici ency of the evidence, t his Court must reviewt he rec ord to d eterm ine if the eviden ce ad duce d durin g the tria l wa s suffic ient“to support

the findi ngs by the trier of fact of guilt b eyond a reas onab le doubt.” Tenn. R. App. P. 13( e). Th is rule is a pplica ble to fin dings of guilt-15-

predicatedupon direct evidence, c ircumstanti al evidence or a combinati on o f directand circu mstan tial evidenc e. State v. Brewer , 932 S.W

. 2d 1, 19 (T enn. Crim. App . 1996). In determiningthe sufficiency of the evide nce, this Cou rt does not rewei gh
or reevalua te the evide nce. State v. Cabbage , 571 S.W .2d 8 32, 835 (Tenn. 1978). Nor may this Court substit ute i t s inferences for thos e drawn by the t rier of fact from c ircums tantial evide nce. Liakas v. S tate , 199 T enn. 2 98, 305, 286 S.W.2d 856, 859 (19 56). To the co ntrary, this Court is required to afford the state the strongest legitim ate view of the e videnc e con tained in the re cord a s well as all reason able an d legitima te inferences which may be drawn fr om the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (T enn. C rim. App . 1995). “A guilty verdict by the jury, approved by t he trialjudge, accr edits th e testimony of the witnes ses forthe State and resolves all conf licts in favor of the theory of the S tate.” State
v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3). Ques tions concerning the credibility of the witnesses, the weight and value to be giv en the evidence as we ll
as all factu al is su es raised by the evidence a re resolved by the jur y as the trier of fact. State v. Tuttle , 914 S.W.2d at 932. Because a verdict

of guil t removes the pr esumption o f inno cence and replacesit with a presu mption of gui lt, t he accused has theburden in this C ourt of ill ustrati ng why the eviden ce is insuffi cient to support the verdict

returned by the trier of fact. State v. Tug gle , 639 S.W.2d 913 , 9 14 (Te nn. 198 2); State v. Grace , 493 S.W.2d at 476. In the present case, two i ndividualwi tnesses test ified t hat the appel lant seemed to be underthe influen ce of an in toxicant the night of the arrest. Vaughn observed that the ap pellant was unsteady exi ting her vehicle, had bloodshot eyes and smelled of a l cohol. A fter ques tioning the appellan t and findin g an em pty3 The appellant does not contest

the find ing that

she is a second off

ender of driving under the influence of an intox icant. -16- beer can in the vehicl e, Vaughn administered sobriet y tests, and the appell ant performed poorly on each tes t. Vaughn asked her if she would submit t

o a blood test, and the appellan t consen ted. Testing revealed that the appel lant had a blood a lcohol co ntent of 0.2 1%, ove r twice the le gal limit. On the night

of her arr

est, the a ppellant informed Vaughn that she had been drivi ng the v ehicl e, even though s he subsequently denied dri ving the
v e hicle almost three months later whil e criminal charges were pending against her. Addition ally, the sta te presented testimony that the appell ant backed her
caronto Mt. Juli et Road after Hamblen extri cated the automobile from t he ditch. After viewing t he evidence i n light most favorabl e to the state, we conclude tha t there is suffic ient evi dence for a rat ional trier of f act to determine t hat th e appellant

was drivi ng under the influence of an intoxic ant. 3 This issue i s without merit.

CONCLUSI ON

After a thorough rev iew ofthe record bef ore this Cour

t, we concl ude that there is no rever sible error in this case . A cc ordingly , the judg ment of the t rial court is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE-17-

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ NORMA MCGEE OGLE, JUDGE