### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 24, 200 4

STATE OF TENNESS EE v . CARLA JUANIT A PRINCE

Direc t Appeal from the Circ uit Court for F ranklin County

No. 13983 Bud dy D. P err y, Judge

No. M2003- 01098-CCA -R3-C D - F iled April 21, 2004

Foll o w in g a ju r y tria l, th e d e f e n d a n t, Ca

r la Ju a n it a Prin c e , w a s c o n v ic te d o f D U I
, f ir s t of fense , a Class A misdemeanor, a nd rec kles s d ri v ing, a Class B misdemea nor. She wa s sentence d,

re sp e c ti v e l y , t o e l e v e n m o n t h s , t w e n t y

- n i n e d a y s , s u s p e n d e d e xc e p t f o r f o r t y

- e i g h t h o u r s , a n d six months, suspended except for f orty -eig ht hours. The two forty -eig ht-hour jail terms we re or dere d
t o b e s e r v e d c o n s e c u t i v e l y, a n d t h e p r o b a t i o n ar y t e r m s w e r e o r d e r e d t o b e s e r v e d c o n c u rr e n t l y. Additionally , her driver’s lice nse wa s revoke d for one y ear and she was fined a

total of $360. On

ap p e a l
, t h e d e f

e n d a n t ar g u e s t h a t t h e e v i d e n c e w a s i n s u f f i c i e n t t o s u p p o r t h e r c o n v i c t i o n f o r D U I. F oll ow ing ou r r e vie w, we a ff irm th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

A L AN E. G L EN N , J ., delivere d the opin i o n of the c ourt, in which J OS EP H M. T I PTON and N OR MA M C G EE O G LE , J J ., joined.

Phili p A. Condra, District Public Def ender
, and David O. McGove rn, Assistant Public Defe nder, f or the appe llant, Carla Juanita Prince.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Mic ha e l Ma rk ha m, A ssi sta nt A tto rn e y

Ge ne ra l; J ames Micha el Tay lor, District Attorney Gene ral; and Steven M

. Blount, Assi stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

Fr anklin CountySheriff’ s Deputy Todd Hindman testified that on Februa ry 25, 2001, at approximately

1:45 a.m., he obser ved the de fenda nt, driving a Chevrolet Camar o, pull into t he parking lot of Woods C ountry Mall off Hig hway

127, pull back out, attem p t t o p u l l i n ag ain, run upon an eight-inc h high concr ete c urb, bac k out into the highwa y , pull back into the par king lot, and then exit throug h a side entra nce. After following her f

or “ma y be a 100 f eet,” Hindman ac tivated-2-

his blue lights and stopped the def endant. He “noticed that her c lothes were rea l disorga nized. Her shirt was misbutt oned, her pants wer e open. I noticed the smell of a lcohol coming from the ve hicle.” When Hindman asked the defendant if she had been drinking, she replied tha t she had c onsumed four beer s. Hindman said that the def en d an t ’s s p eech was slurr ed “to the point that it was somewhat difficult to understand her,” and she was “unstable about her fee t, but able to stand.” He then aske d the de fe nd a nt t o s ta ndin f ro nt o f h is p a tr ol c ar, fa c ing he r v e hic le , a ndpe rf or m th re e fi e ld s ob ri e ty tests. The def

endant informed him that she was under a doctor’s car e for a back injury

and re fused to take the one -leg g ed stand test. Hindman sa id that he had to explain the fing er- to-nose test to the d ef en d an t “ m u l t i p l e t i m es ‘c au s e a s [ h e] wa s ex p l ai n i n g t h e t es t[ t h e d ef en d an t ] wa s t ry i n g t o go

a h e a d an d d o t h e te s t

. ” T h e de fe n d an t d i d n o t fo l l o w hi s i n s t ru ct i o n s an d wa s s wa y i n g

. In Hi nd ma n’ s o pin ion , th e de fe nd a nt f a ile d th e fi ng e r-t o-nose te st. Re g ard ing the he e l- to- toe te st, Hindman said, “[S] he failed the test. She missed se vera l times heel to toe, very unsteady crossing her f eet ove r.” H e said t h at h e was certain she had f ailed that test bec ause he had plac ed that inf or ma tio n in the state wa

rr a nt.

Whil e Hindman wa s transporting the def endant to the jail, the de fenda nt told him that “the only thing [she was] under the influence of [was] Darvoc et an d Soma” and that he r doctor ha d
presc ribed them. Hindman the n radioe d dispatch that he w as taking the def endant to the Southern Te nn e s s e e M e d i c a l C e n t e r , i n s t e a d o f t h e j a i l
, f o r b l o o d a l c o h o l a n d d ru g t e s t s

. A t t he ho sp ita l, Hindman explained the implied consent form to the defe ndant an d asked he r to submit to a blood alcohol test and a

drug scre en, both of which she ref used. He then transported her to the jail, rea d the implied co n sent form to her , and aske d her to sig n it indicating he r re fusal to submit to bl ood alcohol and drug tests, but she ref used to sig n the form. Correc tional O ffice r Mike Saint J ohn wi tne sse d th e de fe nd a nt’ s r e fu sa l to sig n th e fo rm

.

On c ro ss- e xami na tio n, De pu ty Hi nd ma n sai d tha t it wa s ra ini ng du ri ng the de fe nd a nt’ s f ie ld

s o b ri et y t es t s

. As t o t h e d ef

en d an t ’s fi n ger -t o -n o s e t es t , Hi n d m an s ai d t h at s h e t o u ch ed t h e b ri d ge of he r n os e wh ic h w a s w ith in o ne -h a lf inc h o f the tip of

he r n os e . A sk e d if

a br e a tha ly zer

te st w ou ld have be en bene ficial to the jury , Hindm an re s ponded that he “ could not determine whether it was the alcohol or her presc ription medication that was causing her impairment.” On re direc t, Hindman said that the odor of

alcohol did not dissipate when the defe ndant g ot out of her vehicle a nd that he smelled the odor of

alcohol coming from her person. In Hindman’s opinion, th e d efendant wa s intox icated.

Fr anklin CountySheriff’ s Deputy Ross Peter son testified that he responde d to the scene and that he “noticed a strong odor of an alcoholic bever ag e coming from [the defe ndant’s] person.” H e said that the def

endant’ s speec h “see med to be slurred, he r bala nce se emed to be unste ady , her e y es looked kind of droop y , ” and “he r pants we re unzipped there the whole e ntire time that . . . [Hindm an] was standing there talking to he r.” The defe ndant was in the process of per forming the fi e ld sobr iet y

ta sk s w he n Pe te rs on arrive d, a ndit a pp e are d to him

that “ sh e wa s h a vin g tr ou ble understanding order s and apply ing what [ Hindman] was asking her t o do, in other words, a little noncompliance there .” Peter son said that he wa ited at the sc en e for a wr ecke r to tow the def endant’ s vehicle a nd that he had no c ontact with the def endant a fter she left with Hindman.A t t he cl o se of t he p roo f
, t he Stat e and de fense counsel st i p ul at ed t hat any vi d eo t ap e m ad e at t he jai l duri ng 1

t he d efend ant ’ s b o o ki ng pro cess was no l o nger avai l ab l e b ecause t he t ap es were dest royed aft er one year.

-3- Correc tional Office r Michae l Saint J ohn testified t h at h e wa s working in the booking a rea of the jail on Fe bruary

25, 2001, when De puty

Hindman broug ht in the defe ndant who smelled of alcohol and was “stag g ering pretty much and off balanc e of her fee t.” He wi t n es s ed Hi n d man

rea ding the implied consent form to the de fenda nt and her ref usal to sign it. Saint J ohn said that the defe ndant re fused to g ive him the nece s s ar y b o o king inf ormation and that “ [a] ll she wanted to do was stand ther e and f

uss and arg ue with us and cuss and carry on.” He made a notation in the jailer’ s log book re gar d i ng the problems he ha d with the defe ndant and identifie d a copy of it which wa s admitted into evidence . Reading from the notation ente red in the log book at 3:10 a.m., Saint J ohn said, “[The def

endant] being bellige rent. . .

. [S ]he w ould not answe r her questions nor could we g et

a pic tur e a t th is t ime .” I n Sa int John ’s op ini on , th e def

e nd a nt w a s u nd e r the inf

lue nc e of a lc oh ol. Saint J ohn said there was a video ca mera

in the booking a

rea of the jail, and it had be en ac tivated when the defe ndant was broug ht in beca use she wa s a fe male. He said that the jail administrator wa s in char g e of the tapes, a nd he did not know how long the tapes w ere reta ined. 1

Ce le ste Simm on s, the de fe nd a nt’ s dau g hte r, te sti fi e d tha t sh e we nt t o th e de fe nd a nt’ s h ou se

aro un d lu nc h ti me on the da y be fo re he r a rr e st a ndsp e nt the nig ht the re . Sh e sa id the de fe nd a nt d id
not drink any alcohol that day but had done so the day befor e. She thoug ht the defe ndant had take n some medica tion that day but did not know what time she had take n it. Accor ding to Simmons, the defe ndant was not stumbling, he r spee ch wa s not slurred, and she did not have trouble standing afte r taki ng th e med ica tio n. Som e tim e a ft e r S imm on s w e nt t o b e d, a frie ndof the de fe nd a nt, Te rri, telephoned w anting to speak to the defe ndant. Simm ons took the telephone to the de fenda nt who was in bed. She did not smell any alcohol on the defendant a t that time. Si mmons then went bac k to bed and was awa

kened betwee n 4:00 a nd 5:00 a .m. the next m orning when the de fenda nt called her “ to come g et her

out of jail.”

Amy I ng le, the def

endant’ s daug hter-in- law, testified that she and her son had spent most of the day befor e the de fenda nt’s arr est with the defe ndant at her home . When I ng le left the de fenda nt’s home betwe en 6:00 and 7:00 p.m. t hat evening, the defe ndant did not smell of alcohol, did not have slurred spe ech or

droopy ey es, and w as no t acting bellige rent. I ng le denied that any one had be en drinking that day but acknow ledg ed that, on the preceding evening
, her husband and the de fenda nt had drunk be er until about 12:00 a.m. while they wer e visiting in the defe ndant’s home. Aske d how much of the twelve- pack of beer the defe ndant had drunk, I ng le replied, “She couldn’t have dr unk too much. I

know my husband proba

bly drank more than she did.”

The de fenda nt testified that she was forty -seve n y ear s old at the time of her a rre st and that sh e wa s c ur

re ntl y on dis abil ity

a s a re su lt o f b ulg ing dis ks in he r ne c k, pa in in h e r s ho uld e rs a ndle g s,

a ndarthr iti s in he r kn e e s. She sa id that sh e wa s un de r a do c tor ’s c are fo r the se c on dit ion s a t th e tim e of her arr est. On the Friday

befor e her

Sunday morning arr est, the def

endant’ s son, daug hter-in- law, daug hter, a nd two g randc hildren ca me to her home for the evening meal. Her son broug ht a twelve--4-

pack of beer , and she “ had thre e or f our bee rs with him.” On the followin g d ay , S aturday , her daug hter a nd g randdaug hter c ame to her home ar ound lunch time, and her daug hter-in- law and
g randson a

rrived later in the da y

and stay ed until “af

ter dark.” He r daug hter a nd g randdaug hter spent the nig ht in her home. The defe ndant denied drinking a ny alcohol that Saturda y but acknowle dg ed taking “pain pill s,” m uscle relaxers, and anti-inflammatory medication that morning betwee n 6:30 and 7:00 a.m. She said she w ent to bed ar ound 9:30 or 10:00 p.m. and, sometime af t er t h at, her daug hter a wake ned her

and told her tha t Terri was on the tele phone. Af ter speaking with Terri, the de fe nd a nt l e ft

fo r T e rri’ s h ou se . E n r ou te , s he no tic e d th re e po lic e c ars a t th e Woo ds Cou ntry Ma ll, missed her turn, pulled into the par king lot, bumped a curb be cause her c ar w as low to the g round, backe d out onto the road, and “c[a]m e back down and made [her] t urn the way [she] was supposed to.”

As to the field sobriety tasks, the defendant said she t old the officer she could not perf orm them beca

use of he r bac k, leg , and nec k problems. She said that t he only test she per formed w as the fi n ger -t o -n ose test, during which she touc hed her nose and did what the office r told her to do. Acc ording to the defe ndant, her “[h] ealth had every thing to do with that test.” She did not perf orm the hee l-to-toe test bec ause she did not have “very g ood balanc e.” The de fenda nt said it was “windy

a ndsto rm ing a ndra ini ng ” a t th e tim e of he r ar re st. She a c kn ow le dg e d tha t the of fi c e r t oo k h e r t o the hospital and aske d her to submit to a blood test, which she re fused because she had a tendenc y to faint when ha ving blood dr awn. She sa id the office r did not offe r her a b re at h al y z er te st. She informed the of

fice r that she wa s not drunk and that the only substance that could possibly have be en in her sy stem was her

medication which she had take n Saturday morning

. Asked about the odor of alcohol ema nating from her vehicle w hen De puty

Hind ma ns to p p ed her , the def

endant e x plained that her son ha d spilled a bee r in her c ar on the Friday befor e her

arr est.

On cr oss-examination, the de fenda nt sa id it took he r about twenty minutes to drive from her house to the Woods Count ry Mall. She s ai d t h at t h e last t ime she had dr unk any beer was a bout thirty hours prior to her

arr est when she drank thre e or f our beers

. As k ed about her dishevele d
appea ranc e at the t ime of her arr est, the defendant said she did not remember her c lothes “being that
way .” She said sh e h ad “j u m p ed o ut of bed a nd put [ her] clothes on” a nd acknow ledg ed that she “looked pr etty

roug h.” The defe ndant said she ha d been ta king Soma f

or “a long time” and ag ree d that So ma

a nd Da rv oc e t are “ pr e tty po we rf

ul na rc oti c s. ” As ke d if

sh e ha d c omb ine d a lc oh ol w ith her me dication on the Friday befor e her arr est, the defendant said, “I had take[n] my medicine that

mo rn i n g and dra nk the alcohol that a fternoon.” She denied that doing so had constituted “a combination” but ag ree d that Dar vocet, Soma, and a lcohol “should not g o toge ther.” She acknow ledg ed that she ha d rea d the literature which ac comp an i ed h er me dications from the pharma cy and said she knew she was not supposed to combine alcohol with her medications. She did not reca ll having a ny difficulties with the jailers at th e j ai l o n t h e m o rning of her arr est but

a c kn ow le dg e d th a t sh e re fu se d to a ns we r the ir qu e sti on s.-5- AN AL YSI S

Suf fi ciency of the Evidence

T h e d e f e n d a n tar g u e s t h a tt h e e v i d e n c e w a s i n s u f f i c i e n tt o s u p p o r t h e r c o n v i c t i o n f o r D U I, say i n g t h at “a n yconclusion dra wn by the offic er a s to [ her] completion of the fie ld sobriety tasks

wer e [sic] oversha dowed by th e fa ct that [she] had a ba ck injury for whic h [s] he wa s under [a] doctor’s car e.” She also arg ues that the unavailability of the videotape made durin g h er booking
proce ss, “and the f

act that the ta

pe wa s destroy ed for no appar ently g ood rea son, is indicative that the State did not present suff icient evidenc e to convict [her] of the char g ed crimes.” She claims that it was “blata ntly unfair . . . to be convicted of a crime when the a

rre sting a g ency

had ava ilable such signific ant proof a nd y et fa iled to maintain it properly in a manner that the jury could have observe d it and made a

determination with all facts pre sented to them.”

When the sufficie ncy

of the e vidence is challeng ed on appe al, the re l ev ant questi on of the review i n g court is “whether, a fter vie wing the evidenc e in the lig ht most favorable to the
prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond

a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L . Ed. 2d 560, 573 (1979); see also Tenn. R. App. P

. 13(e) (“F indings of g uilt in criminal actions whether by the trial court or jury shall be set aside if the evidenc e is insuff icient to support the finding s by the trier of fa ct of g uilt bey ond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992) ; S t at e v

. An derson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the

cre dibilit y

of witnesses, the w ei gh t an d v al ue to be g iven the evide nce, a nd all fac tual issues are resolved by

the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A g uiltyverdic t by

the ju ry , approved by

the trial judg e, ac cre dits the testimonyof the witnesse s for th e St a te a n d r e s o lv e s a ll c o n f li c ts in f a v o r o f th e th e o r y o f th e St a te

. ” St a te v. Gra ce, 493 S.W .2d 474, 476 (Tenn. 1973)

. A j ury conviction removes the presumption of innoce nce w ith which a def endant is initiallycloake d and re place s it with one of g uilt, so t h at on appeal, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

The de fenda nt was convicted of violating Tenne ssee Code Annotated se ction 55-10-401( a), wh ic h p ro vid e s:

I t is u n la w f u l f o r a n y p e r s o n to d r iv e o r

to b e in p h y s ical control of any

automobile or other motor driven vehicle on any of the public roads a nd highw ay s of the state, or on any streets or a lley s, or while on the pre mises o f an yshopping c enter , trailer pa rk or a ny

apa rt me nt ho us e c omp le x, or a ny oth e r p re mis e s w hic h is g e ne ra lly fre quented by

the public at lar g e, while:Ef fec t i v e Ju l y 1, 2003, s u bs ec t i on ( 2) w as a men ded t o: "T h e al coh ol c on ce n t r at i on i n s u ch pe r s on ' s bl ood or 2

br ea t h i s e i g h t

- h u n dr edt h s of on e per ce n t (

. 08% ) or mor e. "

-6- (1 ) U nd e r the inf

lue nc e of a ny int oxic a nt, ma ri jua na , n arc oti c drug , or drug producing stimul ati n g eff ects on the c entra l nervous
sy stem; or

(2 ) T he a lc oh ol c on c e ntr a tio n in su c h pe rs on ' s b loo d o r b re a th is ten-hundre dths of one per cent ( .10%) or more. 2

Viewe d in the light most favor able to the State, there was suff icient evidenc e fr om which the jury c ou ld c on c lud e that th e de fe nd a nt wa s und e r the inf lue nc e of a lc oh ol at th e tim e of he r a rr e st. Deputy Hindman, the arr esting office r, testified that the def endant ha d an odor of

alcohol coming from her person a nd her ve hicle, her speec h was slurre d, and she w as unstable on her fe et. When Hi nd ma n a sk e d the de fe nd a nt if sh e ha d be e n dr inking
, sh e tol d him sh e ha d c on su me d fo ur be e rs

. Deputy Peterson testi fied that the defendant smelled strong ly of alc ohol, her spee ch wa s slurred, he r ey es we re “ kind of droopy ,” and he r bala nce w as unsteady

. Correc tional Office r Saint J ohn testified
t h at wh en t h e d ef

en d an twa s b ro u gh t i n t o t h e ja i l
, s h e st i l l s m el l ed o f al co h o l an d wa s s t agge ri n g. This court has pr eviously held that t h e t est imony

of the a rre sting off

icer is sufficient to prove the offe nse of driving under the influence . See State v. Va sser, 870 S.W.2d 543, 544 (Tenn. Crim. App. 1993). Acc ording ly
, we conclude that the evidenc e was sufficie nt for a r easona ble jury to find the d e f e n d a n tg u i l t y

o f D U I.

CO NC LU SION

Ba sed upon the for ego i n g au t h o rities and re asoning , we a ffirm the judg ments of the trial

c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE