IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 September 30, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CR-00371 ) Appellee, ) SULLIVAN COUNTY ) ) V. ) ) HON. FRANK L. SLAUGHTER, JUDGE ROBERT M. SNEED, ) ) (DUI SECOND OFFENSE; Appellant. ) DRIVING ON REVOKED LICENSE)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter One Public Square, Suite 321 Clarksville, TN 37040 SARAH M. BRANCH (On Appeal) Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243-0943
STEPHEN M . WALLACE H. GREELEY WELLS, JR. District Public Defender District Attorney General
RICHARD A. TATE ROBERT H. M ONTGOM ERY, JR. Assistant Public Defender Assistant District Attorney General P.O. Box 839 P.O. Box 526 Blountville, TN 37617-0839 Blountville, TN 37617-0526 (At Trial and On Appeal)
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defendant, Robert M. Sneed, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure. Following a jury trial in
the Criminal Court of Sullivan County, the Defendant was convicted of driving
under the influence, second offense, and driving on a revoked license, second
offense. The trial court sentenced Defendant to serve eleven (11) months,
twenty-nine (29) days for each conviction. These sentences were ordered to be
served concurrently. In his sole issue on appeal, the Defendant argues the
evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt
of second offense DUI. We affirm the judgment of the trial court.
W hen an accused challenges the sufficiency of the convicting
evidence, the standard is whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979). This standard is applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence or a com bination of
direct and circumstantial evidence. State v. Matthews, 805 S.W .2d 776, 779
(Tenn. Crim. App. 1990). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all inferences therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, the accused
has the burden in this court of illustrating why the evidence is insufficient to
-2- support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W .2d 913,
914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Questions concerning the credibility of the witnesses, the weight and
value to be given the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754
S.W .2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987).
Nor may this court reweigh or reevaluate the evidence. Cabbage, 571 S.W .2d
at 835. A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in favor of the State. Grace, 493 S.W .2d at 476.
On October 28, 1995, at approximately 11:15 p.m., Brian Taylor, a
Kingsport police officer, observed a car speeding along North Eastman Road in
Kingsport, Tennessee. The speed limit on North Eastman Road is 30 miles per
hour and Officer Taylor estimated the car to be traveling approximately 40 to 45
miles per hour. As Officer Taylor followed the car, he noticed that it was
“operated in a jerky fashion.” Officer Taylor said that the car jerked two or three
times while driving along the road. In addition, its left turn signal was on the
entire time. He followed the car for approximately four blocks along North
Eastman Road until it turned left onto East Sevier Avenue. At that point, Officer
Taylor turned on the blue lights on his vehicle to signal the car to stop. The car
continued on for approximately 100 yards before turning left into Ormond Drive
and stopping.
As Officer Taylor approached the Defendant’s vehicle, he noticed
there was only one person inside the car. Officer Taylor testified he could “smell
-3- the alcohol coming from the car.” At this point he asked Defendant for his driver’s
license but was informed he didn’t have it with him. Officer Taylor asked
Defendant to step out of his car. As he did, Officer Taylor observed that
Defendant used the car door to balance himself. Officer Taylor also noticed “the
odor of alcohol about his person after he was out of the car.” Defendant told
Officer Taylor that he had just gotten out of bed. Officer Taylor said that
Defendant’s speech was slurred. Later, Defendant told the officer that he had
been at Skoby’s Restaurant but had not been drinking.
Officer Taylor asked Defendant whether he had any physical
problems that would affect his performance on any field sobriety tests, to which
Defendant replied that he did not. Then, Officer Taylor asked Defendant to
perform field sobriety tests. First, Defendant perform ed the thumb to finger test,
but was unable to say the numbers and touch his fingers in the correct order.
Second, Defendant performed the heel-to-toe test, during which he could not
walk heel-to-toe and lost his balance at least three times.
On the basis of Defendant’s driving and performance on these tests,
Officer Taylor concluded that he was driving under the influence of an intoxicant
and arrested him. Defendant refused to submit to a blood test to determine his
blood alcohol concentration.
Charles Baker, a Kingsport police officer, testified that on October
28, 1995, he arrived on the scene as a backup officer. He stood two feet away
from Officer Taylor and Defendant as Defendant performed the field sobriety
tests. Officer Baker noticed that Defendant was unsteady on his feet, that he
-4- touched the car to regain his balance, and that he smelled of alcohol. Officer
Baker confirmed Officer Taylor’s account of the tests. Based upon his
observations of Defendant, Officer Baker also concluded that Defendant was
under the influence of an intoxicant.
Defendant acknowledged that he may not have performed well on
his field sobriety tests, and said at trial that “[i]f I’d a been the officer, I’d a
probably arrested me, too.” However, Defendant contends that he told Officer
Taylor that he was dizzy, but that he did not explain the cause of the dizziness.
He testified that his poor performance of the field tests resulted from his high
blood pressure and the fact that he had been painting all day and inhaled the
fumes from the paint. Defendant’s brother, Larry Sneed, testified that on October
28, 1995, he painted his mother’s house with Defendant. He said that he did not
see Defendant drink any alcohol, but that Defendant did complain of dizziness.
Driving under the influence is defined in part as driving or being in
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 September 30, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CR-00371 ) Appellee, ) SULLIVAN COUNTY ) ) V. ) ) HON. FRANK L. SLAUGHTER, JUDGE ROBERT M. SNEED, ) ) (DUI SECOND OFFENSE; Appellant. ) DRIVING ON REVOKED LICENSE)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter One Public Square, Suite 321 Clarksville, TN 37040 SARAH M. BRANCH (On Appeal) Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243-0943
STEPHEN M . WALLACE H. GREELEY WELLS, JR. District Public Defender District Attorney General
RICHARD A. TATE ROBERT H. M ONTGOM ERY, JR. Assistant Public Defender Assistant District Attorney General P.O. Box 839 P.O. Box 526 Blountville, TN 37617-0839 Blountville, TN 37617-0526 (At Trial and On Appeal)
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defendant, Robert M. Sneed, appeals as of right pursuant to
Rule 3 of the Tennessee Rules of Appellate Procedure. Following a jury trial in
the Criminal Court of Sullivan County, the Defendant was convicted of driving
under the influence, second offense, and driving on a revoked license, second
offense. The trial court sentenced Defendant to serve eleven (11) months,
twenty-nine (29) days for each conviction. These sentences were ordered to be
served concurrently. In his sole issue on appeal, the Defendant argues the
evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt
of second offense DUI. We affirm the judgment of the trial court.
W hen an accused challenges the sufficiency of the convicting
evidence, the standard is whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979). This standard is applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence or a com bination of
direct and circumstantial evidence. State v. Matthews, 805 S.W .2d 776, 779
(Tenn. Crim. App. 1990). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all inferences therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, the accused
has the burden in this court of illustrating why the evidence is insufficient to
-2- support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W .2d 913,
914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Questions concerning the credibility of the witnesses, the weight and
value to be given the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754
S.W .2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987).
Nor may this court reweigh or reevaluate the evidence. Cabbage, 571 S.W .2d
at 835. A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in favor of the State. Grace, 493 S.W .2d at 476.
On October 28, 1995, at approximately 11:15 p.m., Brian Taylor, a
Kingsport police officer, observed a car speeding along North Eastman Road in
Kingsport, Tennessee. The speed limit on North Eastman Road is 30 miles per
hour and Officer Taylor estimated the car to be traveling approximately 40 to 45
miles per hour. As Officer Taylor followed the car, he noticed that it was
“operated in a jerky fashion.” Officer Taylor said that the car jerked two or three
times while driving along the road. In addition, its left turn signal was on the
entire time. He followed the car for approximately four blocks along North
Eastman Road until it turned left onto East Sevier Avenue. At that point, Officer
Taylor turned on the blue lights on his vehicle to signal the car to stop. The car
continued on for approximately 100 yards before turning left into Ormond Drive
and stopping.
As Officer Taylor approached the Defendant’s vehicle, he noticed
there was only one person inside the car. Officer Taylor testified he could “smell
-3- the alcohol coming from the car.” At this point he asked Defendant for his driver’s
license but was informed he didn’t have it with him. Officer Taylor asked
Defendant to step out of his car. As he did, Officer Taylor observed that
Defendant used the car door to balance himself. Officer Taylor also noticed “the
odor of alcohol about his person after he was out of the car.” Defendant told
Officer Taylor that he had just gotten out of bed. Officer Taylor said that
Defendant’s speech was slurred. Later, Defendant told the officer that he had
been at Skoby’s Restaurant but had not been drinking.
Officer Taylor asked Defendant whether he had any physical
problems that would affect his performance on any field sobriety tests, to which
Defendant replied that he did not. Then, Officer Taylor asked Defendant to
perform field sobriety tests. First, Defendant perform ed the thumb to finger test,
but was unable to say the numbers and touch his fingers in the correct order.
Second, Defendant performed the heel-to-toe test, during which he could not
walk heel-to-toe and lost his balance at least three times.
On the basis of Defendant’s driving and performance on these tests,
Officer Taylor concluded that he was driving under the influence of an intoxicant
and arrested him. Defendant refused to submit to a blood test to determine his
blood alcohol concentration.
Charles Baker, a Kingsport police officer, testified that on October
28, 1995, he arrived on the scene as a backup officer. He stood two feet away
from Officer Taylor and Defendant as Defendant performed the field sobriety
tests. Officer Baker noticed that Defendant was unsteady on his feet, that he
-4- touched the car to regain his balance, and that he smelled of alcohol. Officer
Baker confirmed Officer Taylor’s account of the tests. Based upon his
observations of Defendant, Officer Baker also concluded that Defendant was
under the influence of an intoxicant.
Defendant acknowledged that he may not have performed well on
his field sobriety tests, and said at trial that “[i]f I’d a been the officer, I’d a
probably arrested me, too.” However, Defendant contends that he told Officer
Taylor that he was dizzy, but that he did not explain the cause of the dizziness.
He testified that his poor performance of the field tests resulted from his high
blood pressure and the fact that he had been painting all day and inhaled the
fumes from the paint. Defendant’s brother, Larry Sneed, testified that on October
28, 1995, he painted his mother’s house with Defendant. He said that he did not
see Defendant drink any alcohol, but that Defendant did complain of dizziness.
Driving under the influence is defined in part as driving or being in
physical control of an automobile on any of the public roads and highways of the
State of Tennessee, or on any streets or alleys while under the influence of any
intoxicant. Tenn. Code Ann. § 55-10-401(a)(1) (Supp. 1993). Therefore, the
evidence must show that the offender: “(1) was in physical control of an
automobile, (2) on a public road within the State of Tennessee, and (3) was
under the influence of an intoxicant.” State v. Waddey, C.C.A. No. 01C01-9508-
CC-00245, W illiamson County, slip op. at 3 (Tenn. Crim. App., at Nashville, July
5, 1996) (Rule 11 application not filed).
-5- Taken in the light most favorable to the State, Defendant was driving
his automobile on a public highway in Kingsport, Sullivan County, Tennessee,
when he was stopped by Officer Taylor. The testimony of the police officers
reflected that Defendant smelled of alcohol, had difficulty standing, had slurred
speech, and was unable to perform field sobriety tests.
From the testimony at trial, the Defendant was clearly driving and in
physical control of the car, clearly on a Tennessee public road, and clearly under
the influence of an intoxicant. Following the conviction for DUI, the State
introduced proof at a bifurcated hearing that Defendant had a prior conviction for
DUI. There was no evidence which contradicted this proof. Therefore, the record
supports Defendant’s conviction for second offense DUI.
Defendant argues that driving under the influence is a crime
requiring specific intent and that he did not have the requisite intent since he did
not ingest any drug or alcohol, but instead took blood pressure medication and
inhaled paint fumes.
However, in State v. Fiorito, this court held that “[t]here is no
culpable mental state required for guilt of DUI.” C.C.A. No. 03C01-9401-CR-
00032, Blount County, slip op. at 3 (Tenn. Crim. App., at Knoxville, Nov. 27,
1995) (Rule 11 application not filed). Instead, the statute “prohibits driving while
under the influence of any intoxicant,” including medications. Tenn. Code Ann.
§ 55-10-401(a) (Supp. 1993). The jury was allowed to hear the testimony of
Defendant and his brother that Defendant had not been drinking on the date of
his arrest, and that any physical impairments he suffered must have been caused
-6- by high blood pressure and/or being exposed to paint fumes. By its verdict, the
jury rejected the Defendant’s version of the facts. W e may not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W .2d at 835.
There was sufficient evidence for a reasonable trier of fact to find
beyond a reasonable doubt that the Defendant was guilty of driving under the
influence, second offense. W e affirm the judgment of the trial court.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID H. W ELLES, Judge
___________________________________ JOHN K. BYERS, Senior Judge
-7-