        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                        JANUARY SESSION, 1998         March 18, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9705-CC-00190
                            )
      Appellee,             )
                            )
                            )    WILLIAMSON COUNTY
VS.                         )
                            )    HON . DON ALD P . HARR IS
MARY SCHWARTZ,              )    JUDGE
                            )
      Appe llant.           )    (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF WILLIAMSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

LARRY D. DROLSUM                 JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
407 C Main Street
P.O. Box 68                      RUTH A. THOMPSON
Franklin, TN 37065-0068          Assistant Attorney General
                                 425 5th Avenu e North
                                 Nashville, TN 37243

                                 JOSEPH D. BAUGH, JR.
                                 District Attorney General

                                 JOHN BARRINGER
                                 Assistant District Attorney General
                                 P.O. Box 937
                                 Franklin, TN 37065-0937


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

       The Defe ndan t, Mary S chwa rtz, app eals a s of righ t pursu ant to R ule 3 of

the Tennessee Rules of Appellate Procedure. She was convicted at a bench trial

of driving under the influe nce of an intoxican t (“DUI”). 1 The trial court sentenced

her to thirty days in the county jail, all suspended except for forty-eight hours, and

eleven months and twenty-nine days of probation. The trial court also imposed

a fine of three hundred fifty dollars ($350), ordered the Defendant to attend

alcohol safety school, and revoked her driver’s license for on e year. 2 In this

appe al, the Defendant argues that the evidence was legally insufficient to support

her conviction . After revie wing th e reco rd, we c onclu de tha t the D efend ant’s

issue lac ks me rit. Accordin gly, we affirm the judgm ent of the tria l court.



       The State’s pro of at trial cons isted of the testimon y of two officers of the

Williamson County Sheriff’s Department. Detective Barry Kincaid testified that

he had been a police officer for ten years and had received specialized training

and certification in DUI de tection. At approxim ately 11:40 p.m. on the night of

September 14, 1995, Kincaid was driving his marked patrol car south on Highway

431. He was heading home because his shift had recently ended. He observed

a vehicle, also traveling south on Highway 431, veer over the center line twice.

In addition, th e vehicle w as traveling at appro ximately th irty-five to forty miles per

hour (35-40 mph ) in a fifty-five mile p er hou r (55 m ph) zo ne. At th is point, K incaid

reset his trip odometer. He followed the vehicle for approxim ately one mo re mile,


       1
           Tenn. Code Ann. § 55-10-401.
       2
          The trial court noted that the Defendant would be eligible for a restricted driver’s
license if employed.

                                               -2-
during which distance he observed it cross the center line six additional times.

After observing the movements of the vehicle, Kinca id suspected that the driver

was potentially intoxicated or asleep at the wheel. He therefore initiated an

investigatory stop. The Defendant was the driver of the vehicle.



      Detective Kinca id testified that as he approached the Defendant’s vehicle,

he obse rved th e Def enda nt plac ing a p eppe rmint c andy in her mouth. He asked

the Defendant for her driver’s license. According to Kincaid, the Defendant took

between two and three minutes to locate her license in her purse. She told him

that she h ad be en drin king th at nigh t but wa s not d runk. K incaid asked her to

step out of her vehicle to perform field sobriety tests. Upon exiting the vehicle,

the Defendant leaned on her car for support. She continued to lean on her car

as Kincaid instructed her regarding the field sobriety tests.           During the

instructions, the Defendant frequently interrupted Kincaid.          She also kept

repeating that although she had been drinking, s he was not drun k. Her ina bility

to pay full attention to the instructions indicated possible impairment, according

to Kincaid.



      The Defendant indicated that she was blind in one of he r eyes. As a result,

Kinca id elected not to perform the horizontal gaze nystagmus (“HGN”) test. He

showed her how to perform the walk and turn field sobriety test. The test was

performed on a level roadway surface along the white fog line at the edge of the

road. According to Kincaid, the Defendant missed placing her heel to her toe on

every step and repeatedly extended her arms for balance. In addition, she

counted nine twice (thereby taking an extra ste p) befo re turn ing aro und. K incaid

testified that the Defendant did not even attempt to perform the correct turn which

                                         -3-
he had instructed her to do. After turning, the Defendant stopped and began

talking to him. She then took three steps back along the line, at which point

Detective Kincaid stopped the test.       He elected not to have the Defendant

perform the one -leg stand test.



      After the completion of the w alk an d turn te st, Kinc aid believed that all the

circumstances indica ted tha t the D efend ant’s driving ability was impaired due to

the use of an intoxicant. He placed her under arrest for DUI. The Defendant

refused to consent to a blood alcohol content test. At some point, the Defendant

told Kincaid that she had started drinking that day around 4:00 or 5:00 p.m. and

that “ma ny, man y beers [h ad] pas sed thro ugh [he r] today.”



      On cr oss-e xamin ation, K incaid adm itted tha t the D efend ant ha d told h im

she was having marital difficulties. He stated that the Defendant did appear to

be upset during the investigatory stop.        Kincaid testified that although the

Defendant was driving well below the spee d limit, her sp eed did not fluctuate

greatly during the time he followed her. He also admitted that he became

aggravated with the Defe ndan t beca use o f her fre quen t interru ptions of his

instructions and yelled at her at one point during the instructions.



      Deputy D ebra Roge rs testified to essentially the sam e facts as De tective

Kincaid. Rogers stated that she had been a police officer for just over two years

at the time of the Defendant’s arrest. At that time she had been trained in DUI

detection by field training officers, but had not yet completed the forty-hour

certification course administered through the police academy. Rogers arrived on

the scene of the stop as Kincaid was giving instruc tions for the field sobriety

                                         -4-
tests, when the Defendant was already o ut of her ve hicle. Upon approaching the

Defen dant, she noticed an odor of alcohol and peppermint. Rogers testified that

the Defendant kept leaning on her car as Detective Kincaid instructed her how

to perform the walk a nd turn te st.     Rogers confirmed that the Defendant

frequently interrupted Kincaid during the instructions.



      W ith regard to the walk and turn test, Rogers stated that the Defendant

missed placing her heel to her toe, put her arms out for balance, repeated step

nine twice, and did not perform a proper turn.        Rogers confirmed that the

Defendant paused and began talking after performing the turn.



      On cross -exam ination , Dep uty Ro gers a dmitte d that D etective Kinca id

yelled at the Defendant in an elevated tone at one point during the instructions.

Rogers also stated that upon pe rforming an inve ntory of the Defendant’s vehicle,

she observed warm, full beer bottles in the trunk.



      The Defendant testified in marked contrast to Kincaid and Rogers. She

stated that on the night of her arrest, she was emotionally upset. At that time,

she and h er hus band were h aving m arital diffic ulties.   In additio n, she had

undergone oral su rgery a pprox imate ly a wee k earlier that left her with partial

paraly sis resulting in a speech impedimen t. She had been informed that the

paraly sis was potentially permanent. On the night of September 14, 1995, given

these difficulties, she decided to leave her home near Spring Hill, Tennessee and

travel to stay at her sister’s home in Nashville. Along the way, she decided not

to bother her sister and in stead rented a room at the Goose Creek Inn. Once

there, she opened a warm beer from the trunk of her vehicle. The beer had been

                                        -5-
placed there earlier by her husband. She testified that the warmth of the beer

made it taste b ad. As a resu lt, she d id not drink m ore than quarter o f it. She later

opened another beer and poured it over a glass of ice. This solution did not

improve the bad taste of the warm beer, and she again drank no more than a

quarter of the beer. Shortly thereafter, she decided that she needed to go home

and le ft the m otel.



       As she drove home, she was stopped by Detective Kincaid. She stated

that any ab norm alities in her driving were due to the fact that she was smoking

and the ashtray in her car was located in a hard-to-reach place. As a result, she

had to take her eyes off the road whenever she moved her cigarette to the

ashtray.   With regard to the peppermint, she testified that she was actually

removing the pepperm int from her m outh as De tective Kincaid approached her

vehicle. Given the speech impediment resulting from her oral surgery, she

removed the candy to allow herself to speak more clearly.               The Defendant

disputed Kincaid’s testimony about the length of time it took her to retrieve her

driver’s license, testifying that it did not take her long to produce the license.



       With regard to the field so briety tests, th e Def enda nt testifie d that s he did

not lean on her car throughout the instructional phase. She stated that Dete ctive

Kinca id first had her count backwards from ten to one. After th at, he beg an to

administer an HGN test, but stopped when she to ld him that sh e was blind in one

eye. Kincaid then instructed her on the walk and turn test. The Defendant began

to explain that she had lingering effects from a previous automobile accident

which might im pact he r perform ance o n the wa lk and turn test. At this point,

Kinca id yelled at the Defendant, using profanity. According to the Defendant, she

                                           -6-
“froze up” because of Kinc aid’s threatening behavior. As a result, she never even

attempted to perform the walk and turn test. The Defendant denied having made

a statement that “many beers [had] passed through [her]” that night, testifying

that she h ad no m ore than half a bee r during the entire nigh t.



      The Defendant also offered the testimony of her husband, Lawrence

Schwartz. Lawrence Schwartz confirmed that he and the Defendant had been

experiencing marital difficulties and that the Defendant had undergone oral

surgery a week before her arrest, resulting in a speech impediment. He also

confirmed that the Defendant left their home at approximately 10:00 p.m. on the

night in question, intending to travel to her sister’s home in Nashville. In addition,

he testified that the ashtray in the Defendant’s vehicle was located in an odd

position, makin g it very difficult to re ach. He stated that he had placed beer in the

trunk of the vehicle in anticipation of an upcoming vacation. Furthermore, he

testified that he spent the entire day with the Defendant and did not observe her

have any alcohol to drink.



      The Defen dant wa s indicted on one count of D UI. She waived h er right to

a jury trial, and her bench trial took place on December 17, 1996.               After

considering the proof presented at trial, the trial court foun d the De fendan t guilty

as cha rged. Sh e now a ppeals to this Cou rt.



      In her only issue on appeal, the Defendant argues that the evidence was

legally insufficient to support her conviction. The Defendant contends that the

evidence does not demonstrate that her ability to drive was impaired through the

use of intoxicants. She points to her testimony that she consumed only half of

                                          -7-
a beer on the night in ques tion.         Sh e con tends that he r testim ony was

corroborated by her husband, who testified that she did not have any alcohol to

drink during the time he was with her, up to 10:00 that night. Moreover, she

contes ts the testimony of Detective Kincaid and Deputy Rogers regarding the

field sobriety testing. Finally, she arg ues tha t the eviden ce doe s not dem onstrate

that her ability to drive was impaired.



      When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light m ost favo rable

to the pros ecution, a ny rationa l trier of fact cou ld have found the essential

eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (1 979). Q uestio ns co ncern ing the credib ility of the w itnesses, 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 fa ct, not this co urt. State v. Pappas, 754

S.W .2d 620, 623 (Tenn. Crim. App. 1987).           Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).




      A verdict approved by the trial judge accredits the State’s witnesses and

resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). On a ppea l, the Sta te is entitled to the strongest legitimate view of

the evidenc e and a ll inferences there from.      Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a p resum ption o f 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. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

                                          -8-
S.W.2d at 476. Although this case involved a bench trial, the findings of the trial

judge who conducted the proceeding carry the same weight as a jury ve rdict.

State v. T ate, 615 S.W .2d 161, 162 (Tenn. Crim . App. 1981 ).



       In the case sub judice, the elements necessary to establish the offense

are:

       (1) that the defendant was driving or was in physical control of an
       automobile or motor driven vehicle;
       (2) that this act occurred on a public road or high way or public street
       or alley; and,
       (3) that the defendant was under the influence of an intoxicant to the
       extent her ability to operate an automobile was impaired.

See Tenn. Code Ann. § 55-10-401. The Defendant does not challenge the

eleme nts that she was driving an automobile or that she was driving on a public

highway. Her complaint focuses solely on the issue of impairment by the use of

an intoxica nt.



       Reviewing the evidence in the light most favorable to the State, we can

only conc lude th at the p roof wa s lega lly sufficient to supp ort the D efend ant’s

conviction. Dete ctive Kincaid testified that he obse rved th e Def enda nt’s veh icle

being operated in an unsafe manner, crossing over the center line of Highway

431 nume rous tim es, including six times within the distance of one mile.

According to the Sta te’s proof, the Defendant was unsteady on her feet and had

an odor of alcohol and peppermint about her. After exiting the vehicle, the

Defendant leaned on the ca r for supp ort. The Defendant performed the walk and

turn field sobriety test, the results of w hich indica ted imp airmen t accordin g to

Detective Kincaid. His observations of the walk and turn test were corroborated

by the testimony of Deputy Rogers. Furthermore, the Defendant’s own testimony



                                         -9-
at trial indicated that she had consumed alcohol on the night of he r arrest. It is

well establish ed that to s ustain a D UI conviction, the eviden ce ne ed on ly

demo nstrate that the defendant was under the influence of an intoxicant, not that

he or she was into xicated. State v. Lane, 673 S.W.2d 874, 876 (Tenn. Crim.

App. 1983); State v. David L. Harrell, C.C.A. No. 03C01-9509-CC-00288, Greene

County (T enn. Crim. A pp., Knoxville, Sept. 30 , 1996).



         Of course, the Defendant contested the testimony of Detective Kincaid and

Depu ty Roge rs in ma ny respe cts. Moreover, she proffered her own explanation

for any erratic driving. The resolution of this conflicting testimony, however, was

a credibility matter fo r the trial judge to resolve. He resolved the issue against the

Defen dant, finding her guilty. From our review of the record, we believe that the

evidence was legally sufficient to sup port the trial cou rt’s verdict. This issue lacks

merit.



         For the rea sons set forth in the discussion above, we conclude that the

Defe ndan t’s issue on appea l lacks m erit. W e therefore affirm the judgment of the

trial court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                          -10-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




                             -11-
