         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    July 19, 2005 Session

                  STATE OF TENNESSEE v. JOHN L. WRIGHT

                  Direct Appeal from the Circuit Court from Maury County
                          No. 14083        Robert L. Jones, Judge



                    No. M2004-02174-CCA-R3-CD - Filed October 7, 2005



The Defendant, John L. Wright, was convicted of driving under the influence (“DUI”), fifth offense,
and of violating the implied consent law. The Defendant now appeals, contending that: (1) the trial
court erred when it denied his motion to suppress statements the Defendant made to the police; (2)
the trial court improperly concluded that the Defendant’s arrest was lawful; and (3) the evidence is
insufficient to sustain his DUI conviction. Finding that there exists no reversible error, we affirm
the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Michael D. Cox (on appeal) and Bobby Sands (at trial) , Columbia, Tennessee, for the Appellant,
John L. Wright.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; Dan Runde, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

        This case arises from the Defendant’s conviction for DUI. The Maury County Grand Jury
indicted the Defendant for DUI, fifth offense, and for violating the implied consent law. At the
Defendant’s bench trial, the following evidence was presented: Dana Lovell testified that she was
employed by the county clerk’s office, and, in 2002, she was living at 4010 Park Drive in Columbia,
Tennessee. She said that, around 3:15 a.m. one morning, the Defendant knocked on her door, and,


                                                 1
after hearing the knock at her door, she “peeped out” her window and saw a van in her driveway with
one of the tires straddling the culvert next to her driveway. Lovell testified that she did not recall
if the Defendant was sober, and she was so busy screaming at the Defendant that she did not notice
the state of his condition. She did not recall for sure if she told the officers that the Defendant was
“drunker than hell.”

        On cross-examination, Lovell testified that she did not see the Defendant inside his van, and
she did not see the Defendant drive the van. On redirect, she said that there was no one else with the
Defendant when he knocked on her door. Lovell said that she did not see anyone else in the area
who could have driven the van, but she did see a man down the road. She testified that the
Defendant did not tell her that anyone else drove the van.

        Officer David Roachell, an officer for the Columbia Police Department, testified that, on July
25, 2002, he responded to an accident call, which was called in by someone on Park Drive. Officer
Roachell recalled that, when he arrived at Park Drive, he encountered the Defendant standing next
to a white vehicle that was “high centered” on a concrete abutment. The officer said that when he
saw the Defendant he believed that the Defendant was inebriated past the legal limit. He asked the
Defendant to come out to the street, and the Defendant shook his head “no” and walked briskly
towards the residence. He and another officer then ushered the Defendant back to the street to talk
about the incident. Officer Roachell testified that he noticed that the Defendant had bloodshot eyes,
was unsteady on his feet, and was emanating a strong odor of alcohol. On cross-examination,
Officer Roachell testified that no accident report was filed as a part of the investigation. He said that
the Defendant was standing two feet behind the driver’s side door of the white van when the officers
arrived.

        Officer Paul McCormick, with the Columbia Police Department, testified that, on July 25,
2002, he responded to an accident call around 3:00 a.m. that was called in by someone on Park
Drive. He testified that, when he arrived at the residence, he saw the Defendant standing in the
driveway, and the Defendant appeared very unsteady on his feet. He testified that the Defendant’s
van appeared to have hit a brick abutment while turning from Park Drive into the driveway. The
officer said that he had been to basic and advanced accident reconstruction schools. On cross-
examination, Officer McCormick testified that he and Officer Roachell arrived at the scene at about
the same time, and he did not observe the Defendant drive the van. He also did not see the
Defendant occupying or in physical control of the van, and he did not advise the Defendant of his
Miranda rights at any time. To his recollection, Officer Roachell went into the driveway and ushered
the Defendant back into the street.

       On redirect examination, Officer McCormick testified that the Defendant was not in custody
when he admitted that he was driving the van, rather, the Defendant admitted to driving the van
while Officer McCormick was conducting a “kind of on-the-scene” investigation. Officer
McCormick testified that he told the Defendant “we need to talk to you [for] a second” as the
Defendant walked back to the house, but the officers did not lay their hands on the Defendant at this
point. Officer McCormick testified that the Defendant did not voluntarily approach the officers and


                                                   2
engage in conversation. Officer McCormick said that the officers would not have granted the
Defendant permission to leave them if the Defendant had asked to leave.

         The trial court then played a video tape of the incident, and the video showed that, while the
Defendant was walking in between Officer Roachell and Officer McCormick from Lovell’s house
to the street, the Defendant stated that he had driven his van earlier. Officer McCormick testified
that the Defendant and the officers had been walking for approximately sixteen to twenty-one feet
off camera when the officers initiated their conversation with the Defendant. Officer McCormick
testified that, when the officers made their initial approach towards the Defendant, the Defendant
started walking away from the officers.

                                                    II. Analysis

       On appeal, the Defendant asserts that:(1) the trial court erred when it denied the Defendant’s
motion to suppress1 statements that the Defendant made to police; (2) the trial court improperly
concluded that the Defendant’s arrest was lawful; and (3) the evidence is insufficient to sustain the
Defendant’s DUI conviction.

                                          A. Defendant’s Statements

        The Defendant first contends that the trial court erred when it denied his motion to suppress
statements that the Defendant made to police. Specifically, the Defendant contends that the trial
court committed reversible error when it allowed the Defendant’s statements that identified the
Defendant as the driver of the van because the Defendant had not, at the time of the statement, been
given Miranda warnings. The Defendant asserts that he should have been advised of his rights
because these statements were made during the course of a custodial interrogation. The State
counters that the Defendant was not in custody when he made the statements at issue, and the police
were merely investigating the accident when they asked the Defendant who drove the van. When
deciding this issue, the trial court held: “[The police] were there to investigate the accident . . . . I
think they are allowed some latitude in that investigation to identify the operator of the vehicle.” The
trial court concluded that the Defendant was seized, within the meaning of the Fifth Amendment,
when the police “ushered” the Defendant back to the street. Therefore, the trial court suppressed all
statements made by the Defendant after that point, but not before.

       The standard of review for a trial court’s findings of fact and conclusions of law in a
suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This standard
mandates that “a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d 330, 333 (Tenn.
2002). The prevailing party 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


        1
          Normally, suppression issues are presented to the trial court prior to trial. In this case, however, the
parties agreed that, because this was a bench trial, the issue could be properly raised during the trial.

                                                           3
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Furthermore, “Questions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Id. However, this Court reviews
the trial court’s application of the law to the facts de novo, without any deference to the
determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

        In Miranda v. Arizona, the United States Supreme Court held that, pursuant to the Fifth and
Fourteenth Amendments’ prohibition against compelled self-incrimination, police officers must
advise a defendant of his or her right to remain silent and of his or her right to counsel before they
may initiate custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 479 (1966). Miranda
warnings are required when a person is subject to custodial interrogation by law enforcement. See
id. “Custodial” means that the subject of questioning is in “custody or otherwise deprived of his
freedom by the authorities in any significant way.” Id. at 478. This Court has expanded this
definition of custodial to mean “under the totality of the circumstances, [whether] a reasonable
person in the suspect’s position would consider himself or herself deprived of freedom of movement
to a degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996).
To aid in determining whether a reasonable person would consider himself or herself in custody, this
Court considers a variety of factors, including the following:

       [T]he time and location of the interrogation; the duration and character of the
       questioning; the officer's tone of voice and general demeanor; the suspect’s method
       of transportation to the place of questioning; the number of police officers present;
       any limitation on movement or other form of restraint imposed on the suspect during
       the interrogation; any interactions between the officer and the suspect, including the
       words spoken by the officer to the suspect, and the suspect’s verbal or nonverbal
       responses; the extent to which the suspect is confronted with the law enforcement
       officer’s suspicions of guilt or evidence of guilt; and finally, the extent to which the
       suspect is made aware that he or she is free to refrain from answering questions or
       to end the interview at will.

Anderson, 937 S.W.2d at 852.

        In the case under submission, viewing this matter under the totality of the circumstances, we
conclude that a reasonable person in the Defendant’s position would not have considered himself
deprived of freedom of movement to a degree associated with a formal arrest. The purpose of the
officers’ questioning was investigative, not interrogative, in nature. They were attempting to
investigate an accident scene to which they had been called. The officers did not proceed in a
lengthy round of questioning in a hostile setting. Instead, they merely asked the Defendant if he had
been driving the van earlier after they told him, “We need to talk to you [for] a second.” The officers
did not force the Defendant to answer their questions, and Defendant acquiesced to the officers’
requests for questions when he stated that he had driven the van earlier. The officers did not restrain
the Defendant’s freedom of movement during this line of questioning. They did not lay their hands
on the Defendant, and they did not tell the Defendant that they would not allow him to leave. We


                                                   4
conclude that the evidence does not preponderate against the trial court’s finding that the Defendant
was not in custody until he was “ushered” to the street by the officers. For the reasons stated above,
we conclude that the Defendant’s statement that he had driven the van earlier was properly admitted,
and that the Defendant is not entitled to relief on this issue.

                                      B. Defendant’s Arrest

        The Defendant’s second assertion is that the trial court erred in finding that the warrantless
arrest of the Defendant was lawful, and that the trial court erred by not granting the motion to
suppress based on the unlawful arrest of the Defendant. Specifically, the Defendant argues that the
officers could not have established the required probable cause for each element of a DUI offense
and that, consequently, the Defendant’s arrest did not qualify for the exception to the prohibition of
warrantless misdemeanor arrests provided by Tennessee Code Annotated section 40-7-103(a)(6).
The State argues that the Defendant’s arrest was lawful pursuant to Tennessee Code Annotated
section 40-7-103(a)(6) because the officers had probable cause to believe that the Defendant had
committed the DUI offense. The trial court held that the Defendant’s arrest was lawful pursuant to
section 40-7-103(a)(6).

         The trial court’s findings of fact are “presumptively correct on appeal” and are binding upon
this Court unless the evidence in the record preponderates against them. State v. Randolph, 74
S.W.3d 330, 333 (Tenn. 2002). 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. State v. Yeargan, 958
S.W.2d 626, 629 (Tenn.1997). However, this Court reviews the trial court’s application of the law
to the facts de novo, without any deference to the determinations of the trial court. State v. Walton,
41 S.W.3d 75, 81 (Tenn. 2001).


        Generally, a warrantless arrest for a misdemeanor not committed in an officer’s presence
violates Tennessee law. State v. Duer, 616 S.W.2d 614, 615 (Tenn. Crim. App. 1981). However,
Tennessee Code Annotated section 40-7-103(a)(6), which governs warrantless arrests by police
officers, provides in pertinent part as follows:

        (a) An officer may, without a warrant, arrest a person: . . . .

       (6) At the scene of a traffic accident who is the driver of a vehicle involved in such
       accident when, based on personal investigation, the officer has probable cause to
       believe that such person has committed an offense under the provisions of title 55,
       chapters 8 and 10. The provisions of this subdivision shall not apply to traffic
       accidents in which no personal injury occurs or property damage is less than one
       thousand dollars ($1,000) unless the officer has probable cause to believe that the
       driver of such vehicle has committed an offense under § 55-10-401[.]


                                                  5
Tenn. Code Ann. § 40-7-103(a)(6) (2003); see also Tenn. Code Ann. § 40-7-103(a)(8) (2003).
Section 55-10-401 prohibits any person from driving or being in physical control of any automobile
or other motor driven vehicle on any of the public roads and highways of the State while under the
influence of a drug or intoxicant. Tenn. Code Ann. § 55-10-401 (2003).

         In the case under submission, we conclude that the officers had probable cause to believe that
the Defendant was the driver of a vehicle involved in an accident and that the Defendant had
committed the accident while in violation of section 55-10-401. The Defendant told the officers that,
earlier, he had driven the van, which was involved in an accident with a concrete abutment beside
Lovell’s driveway. After speaking with the Defendant, the officers noticed that he smelled of
alcohol, was unsteady on his feet, and had blood shot eyes. These circumstances provided the
officers with probable cause to believe that Defendant had been involved in an accident while he was
intoxicated. Therefore, the officer’s warrantless arrest of Defendant was lawful and in accordance
with section 40-7-103(a)(6), and that the Defendant is not entitled to relief on this issue. Tenn. Code
Ann. § 40-7-103(a)(6) (2003).

                                      C. Sufficiency of Evidence

         The Defendant alleges that there is insufficient evidence in the record to support his DUI
conviction. Specifically, he alleges that the trial court erred when relying solely on circumstantial
evidence to convict him of DUI. He contends that the evidence did not establish that he drove or was
in physical control of his van while intoxicated on a public road for the following reasons: (1) there
were no eyewitnesses to the Defendant driving or occupying his van while intoxicated; (2) the
officers found the Defendant outside the vehicle and the ignition keys were unaccounted for; (3) the
engine was not running when the officers found the Defendant next to his van; and (4) the van was
immobile due to its position on the concrete abutment besides Lovell’s driveway. The State argues
that it provided sufficient evidence to sustain the Defendant’s DUI conviction for the following
reasons: (1) the officers found the Defendant on Park Drive, standing next to his van in an
intoxicated state, shortly after they responded to a dispatch call reporting an accident in the area; (2)
the Defendant told the officers that he had driven the van earlier; (3) no one was with the Defendant
when the officers arrived at the scene; and (4) Lovell testified that no one was with the Defendant
when he knocked on her porch door.

        The trial court found that:

        The Court finds beyond a reasonable doubt that [Defendant] operated his vehicle just
        moments before he was seen at the front door of the Lovell house and then seen by
        officers in the driveway of the Lovell property. And that proof convinces the Court
        beyond a reasonable doubt that he had just operated that vehicle on Park Drive, a
        public street, while under the influence of an intoxicant and he did not have time to
        get under the influence between his operating on the public street and the officers
        discovering him there near the vehicle . . . .


                                                   6
         When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering 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. Tenn.
R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This Court
must afford the State of Tennessee the strongest legitimate view of the evidence contained in the
record, as well as all reasonable inferences which may be drawn from the evidence. Goodwin, 143
S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000). Because a verdict of guilt
against a defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally insufficient
to sustain a guilty verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

         Under Tennessee law, to support a conviction for DUI, the State is required to prove, beyond
a reasonable doubt, that the Defendant was driving or “in physical control of any automobile or other
motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys
. . . while . . . [u]nder the influence of any intoxicant . . . .” Tenn. Code Ann. § 55-10-401(a)(1)
(2004). A criminal offense may be established exclusively by circumstantial evidence. State v.
Raines, 882 S.W.2d 376, 380 (Tenn. Crim. App. 1994) (citing State v. Hailey, 658 S.W.2d 547, 552
(Tenn. Crim. App. 1983)). However, before an accused can be convicted of a criminal offense based
on circumstantial evidence alone, the facts and circumstances “must be so strong and cogent as to
exclude every other reasonable hypothesis save the guilt of the defendant . . . .” Id. (citing State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)). In other words, “A web of guilt must be woven
around the defendant from which he cannot escape and from which facts and circumstances the jury
could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.”
Id. (citing Crawford, 470 S.W.2d at 613).

        The Tennessee Supreme Court has adopted a totality of the circumstances test for the
purposes of determining whether a person was in physical control of a motor vehicle or driving a
motor vehicle. State v. Butler, 108 S.W.3d 845, 850 (Tenn. 2003). Such an inquiry is highly factual
and all circumstances should be taken into consideration by the trier of fact when determining
whether the defendant actually drove the vehicle or was in physical control of the vehicle in a
particular case. Id. The relevant factors that the trier of fact should take into account include:

       [T]he location of the defendant in relation to the vehicle, the whereabouts of the


                                                  7
        ignition key, whether the motor was running, the defendant’s ability, but for his
        intoxication, to direct the use or non-use of the vehicle, or the extent to which the
        vehicle itself is capable of being operated or moved under its own power or
        otherwise.

State v. Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993). These factors can be used as circumstantial
evidence that the Defendant had been driving the vehicle. Butler, 108 S.W.3d at 850.

        In Butler, the Tennessee Supreme Court held that there was sufficient evidence to support
a defendant’s convictions under section55-10-401(a)(1) because when the defendant was
apprehended by a police officer he was intoxicated and “was in reasonable proximity to his
motorcycle (one hundred yards) having just removed the spark plug in the parking lot.” Id. at 851.
The Court noted that the defendant had admitted to driving the motorcycle to Wal-Mart shortly
before being arrested. The court concluded that a jury could reasonably find that the defendant had
driven to Wal-Mart despite the defendant’s contentions that he did not start drinking until after he
had exited his motorcycle to shop at Wal-Mart. Id. at 850.

         Similarly, in the case at bar, there is sufficient evidence to prove beyond a reasonable doubt
that the Defendant drove his vehicle while he was intoxicated. The officers found the Defendant in
an intoxicated state standing right next to his van at a residence on Park Drive shortly after they
received a dispatch call for an accident that had occurred there. No one was with the Defendant
when the officers found him next to his van. The Defendant told the officers that he had driven the
van earlier. Therefore, the evidence in the record does not preponderate against the trial court’s
finding that the Defendant was driving while intoxicated. When considering all the circumstances
regarding the Defendant’s arrest for a DUI in a light most favorable to the prosecution, a rational trier
of fact could have found, beyond a reasonable doubt, that the Defendant drove on a public road while
intoxicated. Therefore, we conclude that there is sufficient evidence in the record to sustain
Defendant’s DUI conviction, and that the Defendant is not entitled to relief on this issue.

                                           III. Conclusion

        In accordance with the foregoing, we conclude that the trial court committed no reversible
error. Therefore, the judgment of the trial court is affirmed.


                                                        ____________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




                                                   8
