        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 25, 2010

             STATE OF TENNESSEE v. JIMMY DANIEL PRATER

                    Appeal from the Circuit Court for Wayne County
                        No. 14404     Jim T. Hamilton, Judge




               No. M2009-00527-CCA-R3-CD - Filed November 16, 2010


A Wayne County jury acquitted the Defendant, Jimmy Daniel Prater, of driving under the
influence and mitigated criminal littering, but it found that the Defendant violated the implied
consent law and violated the open container law. On appeal, the Defendant challenges the
sufficiency of the evidence supporting his conviction for violation of the implied consent
law. After a review of the record, we affirm the judgments of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Ryan P. Durham, Lawrenceburg, Tennessee, for the appellant, Jimmy Daniel Prater.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Doug Dicus, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                   Factual Background
       This case arises from a one-vehicle traffic accident involving the Defendant, which
resulted in charges by a Wayne County grand jury of driving under the influence (DUI),
violation of the implied consent law, violation of the open container law, and mitigated
criminal littering. See Tenn. Code Ann. §§ 39-14-503 & 55-10-401, -406, -416. At the
Defendant’s trial on these charges, Phillip Taylor Long, a trooper with the Tennessee
Highway Patrol, testified that, on November 3, 2007, he was called to the scene of an
accident “with no injuries” on Hog Creek Road. When Trooper Long arrived, the Defendant
was already talking with Deputy Cody Mace of the Wayne County Sheriff’s Department.
Based upon his observations of the scene, Trooper Long said it appeared that the Defendant
had been traveling south on Hog Creek Road, “and it looked like he just veered off the road
into trees, knocking over one and causing one or two more to fall over also.” According to
Trooper Long, the accident occurred around 12:36 a.m.

       The activities at the scene were video-recorded by the camera in Trooper Long’s
vehicle, and the audio was recorded by a “mic clip” on Trooper Long’s tie. The tape was
played for the jury, and Trooper Long narrated the events.

        Trooper Long proceeded to the Defendant’s vehicle to get the vehicle identification
number and tag information for the accident report. When he got to the vehicle, the door was
open, and he smelled “a strong smell of alcohol” coming from the vehicle. He looked
through the windows of the vehicle and saw a beer can in the back seat “with a little left in
it.” He also observed three more beer cans approximately ten to twenty feet from the vehicle
“off in the woods.” The brand of the beer cans in the woods, Bud Light, was the same brand
as the beer can found inside the Defendant’s vehicle. Trooper Long described the beer cans
he saw in the woods: “[T]hey didn’t have any debris, they weren’t rusted. They looked like
you just bought them except they were empty.”

        Trooper Long administered several field sobriety tests, most of which, in the opinion
of Trooper Long, the Defendant failed. During the instruction phase of the “walk and turn”
test, the Defendant lost his balance. After Trooper Long finished explaining the test, he
asked the Defendant if he understood, and the Defendant did not respond, but “just took off
doing it.” Trooper Long explained why the Defendant performed poorly on the test: (1) The
Defendant did not “have his feet completely together when he touched heel to toe.”; (2) After
taking his first nine steps and attempting to turn, the Defendant “had to ask which foot he
should have been on. . . . He couldn’t remember what [Trooper Long had] instructed him
to do.”; (3) The Defendant lost his balance while attempting to turn; and (4) As the
Defendant attempts to walk back, he loses his balance again, “he misses . . . twice . . . , and
he uses his arm for balance . . . .”

        After the Defendant was arrested, he was placed in the back of Trooper Long’s patrol
car and transported to the Wayne County Jail. Trooper Long testified that he presented the
Defendant with the implied consent form and read from it verbatim, including the portion
stating the consequences of refusing to submit to the test. The Defendant refused to take the
test and signed the form accordingly.

      On cross-examination, defense counsel again reviewed the videotape with Trooper
Long. Trooper Long agreed that he did not see the Defendant driving the vehicle, as “it was

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sitting on one of the trees [the Defendant] ran over” on a small embankment. In addition to
Deputy Mace who was already present on the scene, Trooper Nutt1 also arrived as Trooper
Long was arriving. Trooper Long agreed that, when he arrived at the accident scene, the
Defendant was outside his car, walking around.

       After the Defendant brought Trooper Long his driver’s license, Trooper Long went
to examine the Defendant’s vehicle. He said that the beer can in the back seat was on the
floor board and was almost empty. Trooper Long agreed that it was possible that the beer
cans got there some other way than the Defendant, but stated, “It would be hard to toss a beer
can that far off the road with the debris, the trees, and the saplings as thick as it is . . . .”

        Trooper Long asked the Defendant if he had been drinking, and the Defendant said
that he had not. At this point, Trooper Long noticed that the Defendant’s speech was slurred,
and he had decided to cite the Defendant for littering, reckless driving, an open container
violation, and a seat belt violation. Trooper Long admitted that he never saw whether the
Defendant was wearing his seat belt; however, he believed the Defendant was not wearing
his seat belt because “most of the time” the seat belt would be “locked,” and it was not.

       Trooper Long testified about the training in administering field sobriety tests and the
standards involved. He acknowledged that there was no line for the Defendant to walk on
while performing the “walk and turn test.” According to Trooper Long, the camera was not
well-aimed to show each time the Defendant missed a heel to toe touch.

        In addition to the “walk and turn” test, Trooper Long also asked the Defendant to
perform the “the finger-to-nose” test and “one-leg stand ” test. Regarding the “finger-to-
nose” test, Trooper Long explained what he meant when he noted on his report that the
Defendant “completely missed” with his right hand: “where you basically miss your whole
face, and he missed the tip of his nose.” Trooper Long did not believe one could see the
“miss” on the videotape. Trooper Long also noted swaying as a reason he failed the
Defendant on “the finger-to-nose” test. As for the “one-leg stand” test, Trooper Long stated
that the Defendant “put his foot down before time, raised his hands, and had to be told to
restart.” Trooper Long admitted that his arrest report and DUI report differed as to the exact
time the Defendant erred during the “one-leg stand” test.

       After his poor performance on the field sobriety tests, Trooper Long asked the
Defendant to submit to the blood alcohol test. The Defendant refused. The Defendant was
then placed under arrest. Trooper Long confirmed that the law requires an officer to have



       1
           We are unable to discern Trooper Nutt’s first name from the record on appeal.

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reasonable grounds to believe an individual is intoxicated before requesting a blood test.
Trooper Long agreed that the Defendant was very polite during the entire process.

       Based upon this evidence, the jury found the Defendant guilty of violating the implied
consent law and of violating the open container law, but found him not guilty of DUI and
mitigated criminal littering. For violating the implied consent law, the trial court revoked the
Defendant’s driver’s license for a period of one year. The trial court imposed a sentence of
thirty days, suspended, in the Wayne County Jail and ordered a $50 fine for the open
container conviction. This appeal followed.

                                          Analysis
        The Defendant contends that the evidence presented at trial is insufficient to support
the jury’s finding of a violation of the implied consent law. Specifically, the Defendant
contends that he was not under “arrest” when asked to take the blood test as required by
statute and that the evidence was necessarily insufficient to support the “reasonable grounds”
element of implied consent. The State disagrees, contending that the evidence is sufficient.

       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor



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will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        The implied consent law provides, in relevant part, as follows:

               (a)(1) Any person who drives a motor vehicle in this state is deemed
        to have given consent to a test or tests for the purpose of determining the
        alcoholic content of that person’s blood, a test or tests for the purpose of
        determining the drug content of the person’s blood, or both tests. However,
        no such test or tests may be administered pursuant to this section, unless
        conducted at the direction of a law enforcement officer having reasonable
        grounds to believe the person was driving while under the influence of alcohol,
        a drug, any other intoxicant or any combination of alcohol, drugs, or other
        intoxicants as prohibited by § 55-10-401, . . .

                 ....

               (3) Any law enforcement officer who requests that the driver of a motor
        vehicle submit to either or both tests authorized pursuant to this section, for the
        purpose of determining the alcohol or drug content, or both, of the driver’s
        blood, shall, prior to conducting either test or tests, advise the driver that
        refusal to submit to the test or tests will result in the suspension by the court
        of the driver’s operator’s license . . . ,

               (4)(A) If such person, having been placed under arrest and then having
        been requested by a law enforcement officer to submit to either or both tests,
        and having been advised of the consequences for refusing to do so, refuses to
        submit, the test or tests to which the person refused shall not be given, and the
        person shall be charged with violating this subsection (a). . . .

Tenn. Code Ann. § 55-10-406. With certain exceptions,2 violating the implied consent
statute is not a crime but a civil wrong: “If the court finds that the driver violated [the
provisions of the implied consent statute], . . . the driver shall not be considered as having



        2
           We note that a violation of the implied consent law may result in criminal penalties if the defendant
is driving on a license that is cancelled, suspended, or revoked for certain prior convictions. See Tenn. Code.
Ann. § 55-10-406(a)(3).



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committed a criminal offense; however, the court shall revoke the license of such driver . .
. .” Tenn. Code Ann. § 55-10-406(4)(A).

        In this case, to support a conviction for violation of the implied consent law, the State
must have proven the existence of the following essential elements: (1) that the defendant
had been driving a motor vehicle in this state; (2) that the defendant had been placed under
arrest and had been requested by a law enforcement officer to submit to a test for the purpose
of determining the alcohol and/or drug content of his blood; (3) that the defendant had been
advised that refusal to submit to the test or tests will result in the suspension by the court of
the driver’s operator’s license; and (4) that the defendant refused to submit to such test or
tests. See Tennessee Pattern Jury Instructions-Criminal § 38.17 (defining the criminal
offense of refusal to submit to a test while driving on cancelled, suspended, or revoked
license).

        First, the Defendant argues that he was not under “arrest” prior to Trooper Long’s
request for him to submit to a blood alcohol test and, therefore, Trooper Long did not follow
the requirement of subsection (4)(A) (“ If such person, having been placed under arrest and
then having been requested by a law enforcement officer to submit to either or both tests .
. .”). However, when the Defendant was asked to submit to a blood alcohol test, Trooper
Long believed the Defendant to be intoxicated. It may be inferred that the Defendant was
under Trooper Long’s control and was not free leave. See State v. Evetts, 670 S.W.2d 640,
642 (Tenn. Crim. App. 1984). The Defendant was under “arrest” at that time. See id.; see
also State v. Nidiffer, 173 S.W.3d 62, 66 (Tenn. Crim. App. 2004). Moreover, a formal
arrest at the scene took place immediately following Trooper Long’s request for testing. The
Defendant was then transported to the county jail for booking, read the implied consent form,
and again refused to take the test. The evidence was sufficient for a jury to find that the
Defendant was under “arrest” at the time he was asked to submit to testing.

       The Defendant next argues that jury did not have sufficient evidence upon which to
conclude that Trooper Long had reasonable grounds to believe that the Defendant was
intoxicated. While no definition of “reasonable grounds” is provided in the statute, the term
has been used interchangeably with “probable cause” by the courts of this state. State v.
Bowery, 189 S.W.3d 240, 248 (Tenn. Cirm. App. 1984) (citing State v. Melson, 638 S.W.2d
342, 350 (Tenn. 1982); State v. Humphreys, 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001)).
This Court has previously determined that factors such as the smell of alcohol, unsteady gait,
bloodshot eyes, slurred speech, and unsuccessful performance of field sobriety tests
constitute probable cause to request blood alcohol testing. Id. (citations omitted).

       First, we note that “reasonable grounds” is not an element of the offense for the jury
to consider, and that the Defendant did not raise this issue in the trial court. See Tenn. R.

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App. P. 36(a). Nonetheless, we conclude that reasonable grounds existed for Trooper Long
to request a blood alcohol test. In this case, the Defendant was the driver in a one-vehicle
accident. Upon examining the Defendant’s vehicle, Trooper Long testified that he smelled
alcohol and that he then noticed that the Defendant’s speech was slurred. Trooper Long had
the Defendant perform several field sobriety tests, which, in Trooper Long’s opinion, the
Defendant failed. The Defendant’s slurred speech, his poor performance on the field sobriety
tests, the odor of alcohol, the empty beer cans found in and around the Defendant’s vehicle
satisfactorily formed the factual bases for Trooper Long’s inference that a blood test was
likely to reveal evidence of driving under the influence.

       The videotape and implied consent form confirmed that Trooper Long both requested
a blood alcohol test and advised the Defendant of the consequences of refusal. There is no
disagreement that the Defendant refused to submit to the blood alcohol test. This evidence
sufficiently supports the jury’s finding that the Defendant violated the implied consent law.

                                      Conclusion
       Based upon the foregoing, we conclude that the evidence is sufficient to support the
Defendant’s conviction for violation of the implied consent law. The judgments are
affirmed.




                                                   _________________________________
                                                   DAVID H. WELLES, JUDGE




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