        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         MARCH SESSION, 1997         September 3, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,           )   C.C.A. NO. 01C01-9605-CC-00228
                              )
     Appellee,                )
                              )   RUTHERFORD COUNTY
                              )
V.                            )   HON. JAMES K. CLAYTON, JR.,
                              )   JUDGE
JOHN HOWARD POPE,             )
                              )
     Appellant.               )   (DUI)



FOR THE APPELLANT:                FOR THE APPELLEE:

TERRY A. FANN                     JOHN KNOX WALKUP
W ALDRON AND FANN                 Attorney General & Reporter
202 W est Main Street
Murfreesboro, TN 37130            LISA A. NAYLOR
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  2nd Floor, Cordell Hull Building
                                  Nashville, TN 37243

                                  WILLIAM WHITESELL
                                  District Attorney General

                                  DALE ROBERTSON
                                  Assistant District Attorney General

                                  JOHN PRICE
                                  Assistant District Attorney General
                                  303 Rutherford County Judicial Bldg.
                                  Murfreesboro, TN 37130


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                               OPINION

             The Defendant, John Howard Pope, was convicted of DUI, 1st

Offense, following a bench trial in the Circuit Court of Rutherford County. He

appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate

Procedure. In addition to challenging the sufficiency of the evidence to support

the conviction, Defendant argues that the trial court erred by denying his Motion

to Suppress all evidence obtained as a result of the investigatory stop of him

immediately preceding his arrest for DUI. We affirm the judgment of the trial

court.



                      I. SUPPRESSION OF EVIDENCE



             On the night of December 26, 1994, Officer Chris Thornton of the

Murfreesboro Police Department was on duty and “sitting stationary” in her patrol

car at a car wash. While there, an unidentified young lady approached and

stated that she had just been sexually propositioned by a man at the K-Mart

parking lot in Murfreesboro. Specifically, the lady told Officer Thornton that the

man had offered her “$100.00 for 30 minutes.” The lady gave Officer Thornton

a description of the man and the van that he was driving, including the color and

license plate number. She also related to Officer Thornton that she became

scared when the man attem pted to follow her to her vehicle. The K-Mart store

was not within Officer Thornton’s zone for patrol, and she radioed the dispatcher,

relayed the information given to her, and requested a unit to investigate. The

radio transmission by Officer Thornton could be heard by other officers. No



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patrol car was available for the zone in which the K-Mart is located, and the

dispatcher requested Officer Thornton to proceed to the scene. In her haste to

leave, Officer Thornton did not obtain any identifying information of the woman

who made the report, and her identity remained unknown through the time of the

hearing of the motion to suppress and the trial.



             Officer Charles Goodloe of the Murfreesboro Police Department was

on duty at the time, driving a police m otorcycle. He was located in front of K-Mart

when he heard Officer Thornton’s radio transmission and went into the parking

lot and observed the described van parked in a parking place. Officer Goodloe

stopped his motorcycle behind the van and turned on his blue lights “for the

purpose of going up there and talking to him [Defendant].” Officer Goodloe

walked up to the driver’s side window of the van, which was down, and spoke to

Defendant. Defendant did not speak to the officer, but started the van and began

to drive off. Goodloe then returned to his motorcycle, with the blue lights still on,

and followed the van in an attempt to make the Defendant stop. The Defendant

did not stop until after Officer Thornton arrived at the parking lot and drove her

vehicle in front of Defendant’s van.



             W hen Officer Thornton went up to the van she could smell the odor

of an intoxicant on the Defendant.         Both officers testified that they never

observed the Defendant driving in an erratic manner. He drove about halfway

across the parking lot before coming to a stop after leaving Officer Goodloe.



             Both officers also confirmed that they had no evidence or facts

whatsoever to suspect Defendant was under the influence of any intoxicants until

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after he was stopped subsequent to driving away from Office Goodloe. Both

officers confirmed that they were relying solely on the unidentified woman’s

information provided to Officer Thornton in making the stop.



             Defendant was placed under arrest for DUI as a result of the

observations by the officers of Defendant’s intoxication.          His vehicle was

searched incident to the arrest and the police found a half-empty bottle of vodka,

and an opened bottle of orange juice. The Defendant agreed to submit to a blood

alcohol test and was taken to the hospital to give a sample of his blood. The

sam ple was sent to the TBI Crime Laboratory and the result was 0.17.



             The Defendant testified and denied speaking to any female at the

parking lot on the night in question, denied having $100.00 in his possession, and

denied making any sexual advance or sexual proposition to any female on the K-

Mart parking lot on the night of his arrest. In addition, the Defendant testified that

he did not remember Officer Goodloe coming up to his vehicle’s window, and that

he did stop in the parking lot after he saw Officer Thornton’s patrol car.



             The proper standard of review for suppression issues was recently

set forth by our supreme court in State v. Odom, 928 S.W.2d 18 (Tenn. 1996):


      The party prevailing in the trial court is entitled to the strongest
      legitimate view of the evidence adduced at the suppression hearing
      as well as all reasonable and legitimate inferences that may be
      drawn from that evidence. So long as the greater weight of the
      evidence supports the trial court’s findings, those findings shall be
      upheld. In other words, a trial court’s findings of fact in a
      suppression hearing will be upheld unless the evidence
      preponderates otherwise.




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Odom, 923 S.W .2d at 23.



             The Defendant states in his brief that the issue on the Motion to

Suppress is “whether there was a sufficient factual basis for the investigatory stop

which eventually led to [Defendant] arrest.”        In support of his argument,

Defendant relies upon State v. Binion, 900 S.W .2d 702 (Tenn. Crim. App. 1994),

State v. Coleman, 791 S.W .2d 504 (Tenn. Crim. App. 1989), State v. Lawson,

929 S.W.2d 406 (Tenn. Crim. App. 1996), and State v. James Chester Cobb, Sr.,

No. 01C01-9011-CC-00308, Hickman County (Tenn. Crim. App., Nashville, filed

May 7, 1991). W e feel that the facts of the case sub judice are distinguishable

from this court’s decisions in the cases relied upon by Defendant.

             In Binion, the issue presented for review was whether the act of the

Defendant lawfully turning his vehicle around approximately 1,000 feet from a

police roadblock was sufficient to give a state trooper reasonable suspicion to

stop the vehicle. This court held that it did not. Coleman involved a situation

where the police officer received a “tip” from an informant whom he did not know

prior to receiving the information. In the case sub judice, while the identity of the

woman who reported the information to Officer Thornton remains unknown, the

woman was a victim citizen informant which satisfied the “basis of knowledge”

test lacking in Coleman. See State v. Jacumin, 778 S.W .2d 430 (Tenn. 1989).

In addition, information regarding the description of Defendant’s van, along with

the license plate number and its location was immediately verifiable by Officer

Goodloe. Likewise, in Cobb, an unpublished opinion of this court, there was

involved an apparently anonymous informant. There was nothing in the record

to indicate the “basis of knowledge” of the informant. In Lawson, the stop was




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based solely upon the fact that the Defendant’s vehicle was located in a “high-

crime area.”



               W hile not relied upon by the State in its brief, the case of State v.

Pully, 863 S.W .2d 29 (Tenn. 1993), controls in this issue raised by Defendant.



               Under Pully, as soon as Officer Goodloe turned on the blue lights of

his motorcycle, Defendant was “seized” within the meaning of Terry v. Ohio, 392

U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Pully, 863 S.W.2d at 30. However,

the next issue to determine is whether the stop and seizure complied with both

state and federal constitutional provisions which prohibit “unreasonable searches

and seizures.” Pully, 863 S.W .2d at 30. According to our supreme court in Pully:


      In general, although the Fourth Amendment requires “probable
      cause” before an arrest is deemed to be reasonable, the
      reasonableness of seizures less intrusive than a full-scale arrest is
      judged by weighing the gravity of the public concern, the degree to
      which the seizure advances that concern, and the severity of the
      intrusion into individual privacy.


Pully, 863 S.W .2d at 30.



               W hen Officer Goodloe made his “stop” of Defendant, the Defendant

was parked in a marked parking place in a public parking lot. Information

received by Officer Goodloe from Officer Thornton’s radio transmission was that

the victim of a reported crime had generally described the alleged perpetrator, the

perpetrator’s vehicle, including its license tag number and color, and its location.

The descriptive inform ation was immediately verified by Officer Goodloe.




                                          -6-
             In this case, the public interest served by the “stop” of Defendant

was the investigation and prevention of the crime of soliciting prostitution in a

public parking lot of a department store. The stop was made of an individual

located in his vehicle in a marked parking place of the parking lot. The intrusion

was relatively minor considering all of the facts and circumstances. The basis of

knowledge of the “informant” was from the standpoint of a victim eye-witness to

an alleged crime recently committed and descriptive information given by the

person providing the information was immediately verified. We conclude that the

police officers had “specific and articulable facts” to justify the investigatory stop

in this case. This issue is without merit.



                     II. SUFFICIENCY OF THE EVIDENCE



             The Defendant’s second issue is whether the trial court erred in

convicting the Defendant of driving under the influence, first offense, based upon

the evidence as presented at trial. The Defendant first argues that the blood test

should not have been admitted at trial as fruit of the poisonous tree stemming

from the illegal investigatory stop. W e have already held that the stop was not

improper. Therefore, the blood test was properly admitted.



             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). Questions concerning the credibility of the witnesses,

the weight and value to be given the evidence, as well as all factual issues raised

                                         -7-
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.             State v.

Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).



             On appeal, the State is entitled to the strongest legitimate view of the

evidence and all inferences therefrom . Cabbage, 571 S.W.2d at 835. 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 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).



             Officer Thornton first testified to the events leading up to the

encounter with the Defendant in the K-Mart parking lot. Once the Defendant was

stopped, Officer Thornton saw that the Defendant was red-faced and sleepy-

eyed. W hen the Defendant got out of the van he stumbled, and the Officer had

to hold his arm. She smelled the odor of an intoxicant. The Defendant’s eyes

were red and his speech was slurred. In the Defendant’s van she found a

partially empty bottle of Smirnoff Vodka and a cold, small orange juice bottle.

The officer did not ask the Defendant to perform any field sobriety tests because

she was worried that he would fall down in the parking lot and hurt himself. She

arrested him and asked him to submit to a Blood Alcohol Test. The report came

back that the Defendant’s blood alcohol level was 0.17 percent.




                                        -8-
              Officer Goodloe testified to events up to the point of the arrest. He

then stated that when he began speaking with the Defendant he could smell the

odor of an alcoholic beverage coming from the Defendant. The Defendant was

unsteady on his feet and unable to stand without wobbling. He confirmed no field

sobriety tests were given because of concerns that Defendant might hurt himself.

Based on the appearance, smell, and speech of the Defendant, Officer Goodloe

believed him to be under the influence of an intoxicant.



              Tennessee Code Annotated section 55-10-401 reads, “[i]t is unlawful

for any person . . . to drive or to be in physical control of any automobile . . . while

on the premises of any shopping center . . . while under the influence of any

intoxicant . . . .” From the testimony and exhibits at the bench trial, the Defendant

was clearly driving and in physical control of the van, clearly on the premises of

a shopping center and clearly under the influence of alcohol.             There is no

question that a reasonable trier of fact could find the Defendant guilty of driving

under the influence.



              This issue is without merit. We affirm the judgment of the trial court.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge

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___________________________________
JOE G. RILEY, Judge




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