# FILED September 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707- CC-00262 ) Appellee, ) ) COFFEE COUNTY V. ) ) ) HON. J OHN W. ROLL INS,JUDGE STARLI NG JEAN HI NER, ) ) Appe llant. ) (DUI FI RST OFFENSE)

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT S. PE TERS JOHN KNOX WALKUP SWAFFORD, PETERS & PRIEST Attorney General& Reporter 100 Firs t Avenu e, S.W

. Win cheste r, TN 37 398 JANIS L.TURNER Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 MICHAEL LAYNE Distri ct Attorney General STEP HEN W EITZM AN Assistant Distri ct Attorney General P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Sta rling Jea n Hiner, appeal s as of right herconviction for

first offense DUI follow ing a jury trial in th e Circuit C ourt of Co ffee Cou nty. D efend ant
was subsequently

found guil ty by th e trialcourt of violat ion of theImplied Consent Law. The trialcourt sentenced Defendant to el even (11) months, t wenty-nin e (29) days with allbut four (4) days suspended for the DUI conviction , and the court revoked her licens e for a pe riod of one (1) y ear for t he violat ion of theImplied Consent Law. Defendant rai ses the fol lowing two i ssues in thi s appeal: ( 1) whether t he evidence was suf ficien t to sustain a convi ction fo r DUI beyond a reason abl e doubt, and (2) wh ether th e arres ting offic er ma de a p roper traffic stop and whether he had the author ity to make that stop. The judgment of th e trialcourt is affirmed.

On June 29, 1996, Offic er Ray Stewart, Constable Calvi n McGee and Lakewood Park securit y guard Terry Jackson, were al l call ed to the home of Lucy Grizzle, a reside nt in Lake wood Park, r egard ing a d isturba nce b etwee n Ms. G rizzle and her neighb or, t he Defen dant. Officer Stew art, Constable M cGee an d Mr. Jackson testifi ed at tri al that up on their ar rivalat the Gri zzle resi dence at approximat ely 5:00 p .m., Defendant appeared to be i ntoxicated as she was speaking loudly, slurri ng her words, and was unsteady on her f

eet. The off icers cal med everyone down and then asked Defenda nt and her bo yfriend to return to their home. Officer Stewart i nstructed Defendant and her boyfriend that sh ould the officers need to return, that he woul d arrest t hem for publi c intoxi cation.

At appr oxi mate ly

9:4 5 p. m. that same eveni ng, Constable McGee pul led over a vehicle in Lakewood Park drive n by Defendant. Mr. Jackson was in the car with-3-

Con stable McGe e. Cons table McGee test ified at trialthat he had f irst obse rved a vehicle roll t hrough a stop si gn at the i ntersecti on of Lak ewoo d Drive and R im Fire Drive and proceed to t he left onRim Fire Drive. Constable McGee then foll owed the vehicle for app roxim ately tw o and a half b locks w here h e obs erved it traveling slowly and swerving to som e extent. W hile following the vehicle he realize d that th e car b elonge d to either

Defendant or her

boyfri end although he coul d not tellwho was drivi ng at the ti me.

After initi ating the “blue li ghts” and pulling the vehicle ove r, Constable McGee asked Defendant, who was in factthe driver, to step out of the car. At this poi nt he noticed thatDefendant smelle d of alcohol , was unsteady o n her feet and slurred h er speec h. Constable McGee then administered two fiel d sobriety tests, recitat ion of the alphabet and t he finger t o nose test, both of whi ch Defendantfailed. C onsta ble McG ee de termin ed De fenda nt to be unde r the influ ence of alco hol.

Mr. J ac kson, who was ri ding with Constable McGee, als o observed that Defendant failed the fieldsobriety tests. He testif ied that Defendant had been drivi ng the vehicl e very sl owly and that it was weavi ng prior to being stopped. When Defendant got out of the car, Mr. Jack son no ticed that s he was “barely ab le to stand up” an d that s he sm elled o f alcoh ol.

Con stable McGee radioed Offi cer Stew a rt when he wa s follow ing De fenda nt’s
carand told hi m that he was about to stop a car because of a s uspected intoxicated driver. Office r Stew art, wh o was only a few b locks a way, d rove to the sc ene to aid Con stable McGe e. W hile Officer S tewart r an a record s che ck on the De fenda nt’s license, he watched Defen dant stag ger towa rds the b ack of he r car and fail to-4-

succ essfu lly comp lete the field s obriety tests. In his opi nion, Defendant was “obvio usly drunk” and “h ad no bus iness doing a ny driving of any kind.” He further testified t h at she appeared to be more drunk at 9: 45 p.m. than when he had seen her earlier that day.

Con stable McGee placed Defendant under arrest , had her vehi cle towed, and tookher to the Coffee County Jail. While drivi ng Defendant to j ail, s he told hi m that she had consumed five beer s. Also whi le in t he patrol car, a car in front of them was “drivi ng all over

the roa d” and D efend ant co mm ented to the o fficers th at “[h]e’s drunke r than I am .”

Officer Dale B rissey, a correc tional o fficer at th e cou nty jail, testified that when Defendant arrived at the jail she app eared to be und er the influe nce of an intoxicant. He noticed t hat her

eyes were bloods hot, her speech was slurr

ed, and that she was unstea dy on he r feet. Defe ndant re fused to s ubmit to th e intoxim eter test.

Defendant testified that s he was not intoxicated and t hat she only consumed
one and one-h alf beers prior to being stopped by Constable McGee. She sai d that the reason she couldn’t recite t he alphabet was becaus e she was too nervo us to do
so. However, she cl aimed that she was not incapa ble of driving. Her boyfrie nd, Ramsey Johnson, test ified t hat Defendant was not drunk and that

she consumed less than two beers that evening. He sai d that she dr ove the car because she had had less to drink that eveni ng than he had. Off icer Stewar t, Constabl e McGee, Mr. Jackson and Ms. G rizzle a ll testified that eve n thou gh La kewo od Pa rk is a private ly owned and operated de velopment the general public nonet heless tr avels on the roads within Lakewood Park on a regul ar daily basis. LakewoodPark does have a-5-

gated entrance i nto the subdi vision, but ac cordin g to tes timon y prese nted a t trial,
essen tially no one is denied access into the su bdivision.

I. S UFFICI ENCY OF THE EVI DENCE

When an accused chall enges the suff iciency of the convicti ng evidence, the standard is whether, after reviewing the evi dence in the light most favora ble to the prosection, any rati onal tri er of fact could have found the esse ntial elem ents of the cri me beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard i s applicabl e to findi ngs of guil t predicated upon di rect evi dence, circumstant ial evide nc e or a combinati on of direc t and circ umstantialevidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitle d to the strong est leg itimate view of th e evide nce a nd all in fe rences the ref rom. State v. Cabb age , 571 S.W.2d 832, 835 (Tenn. 1978).Because a verdictof guil t removes the pr esumption of i nnoc enc e and replaces i t with a presumption of guilt, th e acc used has th e burd en in th is court of i llustr ating why

the evidence is i nsufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W.2d 913, 91 4 (T enn. 19 82); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning t he credibi lity of the witnesses, the wei ght and valu e to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by t he trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied , id
. (Te nn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t-6-

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W .2d at 476
.
Moreover, a criminaloffense maybe establi shed exclusi vely by c ircumstanti al evidence. Duch ac v. State , 505 S.W.2d 237 ( Tenn. 1973) ; State v. Jones , 901 S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn. Cri m. App. 198 1). However, befor e an accused may be convic ted of a cri minal offense ba s ed upon circumstant ial evi dence alone, t he facts and ci rcumstances "must be so strong and coge nt as to exclude b eyond a rea sonable do ubt every other
reaso nable hypothe sis save g uilt of th e defen dant." State v. Crawfo rd , 225 Tenn. 478, 470 S.W .2d 610 (1971); Jones , 901 S.W.2d at 396. I n other words, "[a] web of guilt must

be woven around thedefendant fr om which he cannot escape and f rom which facts and ci rcumstances the j ury cou ld dra w no other reasonable inference
save the guilt of the de fendan t beyond a reaso nable d oubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).

Tennessee Code An notated section 55-10-401 provi des in part as foll ows: (a) It is unlawful for any person to drive or to be i n physical control o f any automobil e . . . onany of the publ ic roads and highwa ys of the sta te . . . or any other pr emises which is generall y frequented by th e public at large , while: (1) Under the influence of any intoxicant, marijuana, narco tic drug, or drug producing st imulati ng effects on the cent ralner

vou s syste m; Tenn. C ode Ann . § 55-10-401 (a)(1).
First, from the test imony presented at trial , Defendant was cl early i n physical control of the car. The o fficers observed the car weaving on the r

oad and when the officers stopp ed the vehic le, it was Defe ndan t who e xited the car from the drive r’s-7-

side. Second, it i s clear to us that Defendant was on premises fr

equented by the public at large . Defe ndan t’s insuffici ency issue is based on the argument that since the streets of

Lakewood Park a re priva tely maintained by the board of t rustees for Lakewood that they are not su bject to the laws of this S tate. We find that the record establi shes that the streets of Lak ewood P ark are frequented by the publi c at large. Although there is a gate d entra nce in to the s ubdivis ion, ap paren tly no on e is actu ally turned away from entering. Acco rding to testimon y, the publi c enters th e area on a daily basis and t hre e public establishments ar e even locatedin the subdivision. Defense couns el vigorou sly attem pted to es tablish at t rial that the r oads located within Lakewood Park are not i n fact fr equented by the publ ic. By i ts verdi ct, thejury rejectedDefe ndan t’s claims and accredited those of the State. Based on a caref ul reading of Tennessee Code Annotated sec tion 55-10-401, it i s clear t hat the legislature intended for that statute to be applicabl e t o private property which the public freq uents. D efenda nt’s argum ent is me ritless.
Third, based on the fact s pr e sented at t rial, the jury could have found Defendant to be under the influ ence of an in toxican t. Office r Stew art, Co nstab le McGee, Mr. Jackson and Corr ection Officer

Brissey al l testified that Defendant was intoxi cated. Furthermore, Defendan t fai led to s ucce ssfully c omp lete the field sobriety tests. A rational jury could have concl uded that Defendant’s appearance, her unsteadiness on her feet, her slurred sp eech, her failure to adequa tely perform each of the fie ld sobriety tests, and even her own statements shortl y after the arrest demonstrated that

Defen dant wa s unde r the influen ce of an in toxicant. In viewing the evidence in the l ight most favorable to the State, the evide nce wa s sufficient to suppo rt a convictio n for first offens e, DUI. T his issue is without m erit.-8- II . LEG ALITY

OF THE STOP

Defend ant argues that t he arresti ng officer, Constabl e McGee, made an improperstop of Defendant’ s car, and t hat furt hermore, he did no t have the authority to even make the stop.

An investi gatory stop of a motor vehi cle may be m ade upon a reas onab le
s uspicion by a police officer, sup ported b y specific a nd articula ble facts, tha t a criminal offense has been or is aboutto be committed. See Terry v. Ohio , 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 88 9 (196 8). In or der to determine the specif ic and articula ble facts, this Court must consider t he “totality of the circumstanc es.” State
v. Watkins , 827 S.W.2d 293, 294 (Tenn. 19 92) (citation omitted). Constable McGee testified at tri al that he began following a vehicle after he saw it “ roll”

through a stop sign. He then observed t he car being dr iven in an erratic mann er. These fac ts are suffic ientto support a reas onable suspici on that the driver was under the influence of an intoxic ant. This issue is with out me rit.

Defendant also argues that the authori ty of a policeofficer is dif ferent f rom that of an elected const

able. Specifically, Defendant argues t hat Constable McGee had no auth ority to stop her vehicl e and arrest her since there is no proo f in the record thathe had graduated f rom a program requir ed under Tennessee Code Annotated section 8-10-120 for

operation of

a patrol car by a constabl e. There is no showing in the record that D efendant attempted to eli cit any su ch informati on from the Con stable at the time of his test imon y, nor d id Defe ndan t objec t to the C onsta ble’s autho rity a t the tim e of his testim ony. D efend ant als o did n ot attem pt to rais e this-9-

issue prior to trial. W e therefo re find th at Defen dant h as waive d this issue
. See Tenn . R. App . P. 36(a); T enn. R . Crim. P . 12(f).
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge