        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




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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




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