# FILED
July 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE MA Y SESSION, 1997

STA TE OF TENN ESSEE, ) ) No. 01C01-9608 -CR-00352 Ap pellee ) ) DEKALB COUN TY vs. ) ) Hon. JOHN TURNBULL, Judge JIMMY L. REEDER, ) ) (DUI) Appellant )

For the Appell ant : For the Appell ee : HUGH GREEN CHA RLES W. BUR SON 100 Public Square Attorney Gen eral and Repor ter Lebanon, TN 37087 PE TE R M . C OU GH LAN Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493
WILLIA M EDWA RD GIBSON Distric t Attorney General ANT HO NY CR AIG HE AD Asst. Dist rict Attor ney General 145 South Jefferson Cookevil le, TN 38501

OPINION FILE D: AFFIRMED PURSUANT TO R ULE 20

David G . Hayes Judge2 OPINION
The appellant, Ji mmy L. Reeder, appeals as of ri ght from his conviction for drivi ng whil e under the influenc e. The appellant’s sole issue is whether

the evidence presented at his ben ch trial i n the DeKalb Co unty Circuit Court was sufficient as a matter

of law to sup port his conv iction.

After revie wing t he record, we affirm the trial court’s jud gment pursuant t o Rule 20, Tenn. Ct . Crim. App. R.
On March 10, 1995, the app ellant, a commercial truck driver, drove his eighteen w heeler along his usual r oute from Los Angel es to Nashv ille. While en route, his driving partner became ill requiring the appellant to drive approximately sixteen hour

s. He had sl ept only tw o hours in a twenty-four hour period. When he reached Memphi s at around 2:00 p. m., he stopped at a r estaurant and had a buffet meal. He then cont inued on to Nashv ille. After a rrivi ng, the appell ant drove to hi s home in Smithv ille, chang ed clothes and dr ove to the AmVets Lodge. He enter

ed the Lodge at abou t 6:00 p.m. He consumed two or three beers in the s pace of one hour and a hal f. After complainingof exhaustion, the appellant left the L odge. On his way home, he grew

sleepy and pulled into a public parking lot. Around midnight, the assistan t manager at a local grocery store saw

the appellant s lumped in his car. The clerk called the pol ice. When the two officers arrived, the appellan t was lying sideway s in his car. There were both empty and full beer cans lay ing on the floor board. The keys were i n the ignition, the car was running, and the vehic le’s headlig hts were on. Officer Olson, wi th the Smithvi lle Police Department, attempted to arouse the appe llant. After several attempts, the appellant staggered out of th e car. Both Officers Olson and Bil lings st ated that the appell ant smelled of alco hol. He coul d not stand straig ht, his ey es were bl oodshot, and his s peech was s lurred. The3

appellant admitted to the policemen t hat he had had a few drinks. Officer Olson then requested that he take various field s obriety t ests. The appell ant was unable to recite the alphab et; when requested to touch his nose, he touched his cheek. Finally, the officer observed tha t the appellant was unable to walk a straight line. At this point, the appellant was placed u nder arrest. Following his arrest, the officer

requested th at the appellant s ubmit to a blood te st. The appellant, a former

Marine, refused the test stati ng that he was afraid of needles.

At the conclusi on of the bench trial , the trial judge found the appel lant guilty of drivingunder the influenc e and for viol ating the impl ied consent law

. The appellant was sentenced to 11 months and 29 days with al l time suspended except for tw

o days for hi s DUI conv iction. In ad dition, the cour t fined him $350 and suspended his driving privileges for one year.

W hen reviewing a trial court’s judgment, the appellate court will not disturb a verdict of guilt unle ss the facts of the record and inferenc es which may be drawn from it

are insufficient as a matter of law for a rational trier of fact to find the defendant guilt

y beyond a

reasonable doubt. Tenn. R. App. P. 13( e); Stat e v. Tuggle , 639 S.W.2d 913,914 (Tenn. 1982). In oth er words , this court will not reevaluate or rewei gh the evi dence brought o ut at trial. It is pres umed that the judge or jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the ev idence in favor of the state. See State v. Sheffield , 676 S.W.2d 542,547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Si nce a verdi ct of guilt remov

es the presumpti on of a defendant’s innocenc e and replaces it with a presumption of gui lt, the defendant has t he burden of proof on the s ufficiency of the evidence at the appellate l evel. Grace , 493 S.W.2d at 476.4 The elements of driving under the influence are: (1) driving or being in physical control of a motor vehicle (2) upon any

premises freq uented by the public at lar

ge whil e (3) under t he influence of an intox icant or dru g. Tenn. Code Ann. § 55-10-401 ( 1993 Repl.); State v. Ra y , 563 S. W.2d 454, 459 (Tenn. C rim. App. 1988). The offense of drunk drivin g may be es tablished by circumstanti al evidence. State v. Gilbert , 751 S.W.2d 454, 459 (Tenn. Crim. A pp. 1988). In this case, theappellant chal lenges only the finding th at he was unde r the influence of an intox icant at the ti me of his arrest . Based upon careful consideration of the evidence, the trial court found that the appel lant was u nder the influence of alcohol. W e agree. The evidence in the record bef ore us more than amply supp orts the appell ant’s conv iction for dri ving under the influence.

In conclusion, pursuant to Ru le 20, Tenn. Ct. C rim. App. R., we hold that the evidence is sufficient to fin d the appellant g uilty bey ond a reasonable do ubt, and we, therefore, affirm the trial court’s j udgment.

____________________________________ DAVID G. HA YES, Judge
CONCUR:

_______________________________ PAUL G. S UMMERS, Ju dge

_______________________________ JERRY L. SMI TH, Jud ge