         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                            APRIL SESSION, 1999           May 26, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9806-CC-00258
                               )
      Appellee,                )
                               )
                               )    FRANKLIN COUNTY
VS.                            )
                               )    HON. J. CURTIS SMITH,
RONNIE R. GARNER,              )    JUDGE
                               )
      Appe llant.              )    (DUI)


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


FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT S. PETERS                    JOHN KNOX WALKUP
100 Firs t Avenu e, S.W .           Attorney General and Reporter
Win cheste r, TN 37 398
                                    LUCIAN D. GEISE
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    J. MICHAEL TAYLOR
                                    District Attorney General

                                    STEVEN M. BLOUNT
                                    Assistant District Attorney General
                                    1002 West Main Street
                                    Decherd, TN 37324



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Ronnie R. Garner, appeals from his conviction for second-

offense DUI and failure to wear a seat belt. The sole issue he argues on appeal

is the sufficiency of the evidence for DUI. We conclude that the evidence was

sufficient to permit the jury to convict Defen dant of DU I, and we therefo re affirm

the verdic t of the jury as approve d by the trial c ourt.



       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.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBe e v. State , 372 S.W .2d 173, 176 (Tenn. 196 3);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Ten n. 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all reas onab le and legitim ate

inferences that may be d rawn therefrom .” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8)). The cou rt may not “re-

weigh or re-evaluate the evidence” in the rec ord belo w. Evans, 838 S.W.2d at



                                          -2-
191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the co urt must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



      At trial, Tennessee Highway Patrol Officer James T. Sears testified that on

March 21, 1997, he and two other officers conducted a traffic-enforcement

roadblock on Highw ay 127 in Fran klin County. At ap proximately 11:47 p .m.,

Defendant drove into the roadblock very slowly, with his headlights on bright

beam. When Defe ndan t stopp ed his vehicle, Sears approached and smelled an

odor of alcohol. After requesting Defendant’s license, Sears asked him if he had

been drinking, to which Defendant responded that he had consumed three to four

beers. Although Sears found Defendant’s demeanor cooperative, he stated that

Defen dant’s sp eech w as “som ewhat d ragged out and slurred.”



      Based upon these observations, Officer Sears asked Defendant to park h is

vehicle on the side of the road and ste p out. Sears noticed that after Defendant

slowly exited the car and closed the do or, he leaned b ack onto the d oor. Sears

then conducted two field sobriety tests: the finger-to-nose test and the walk-and-

turn test. Sears testified that he was not certified to conduct the horizontal gaze

nystagm us test.



       First, he directed D efenda nt to perfor m the fing er-to-nos e test. Defendant

began the tes t withou t waiting for Se ars to fin ish the instructions, c ontrary to

Sear s’s direction; and the officer testified that he ultimately had to instruct

Defendant three time s. Accor ding to Sears, Defendant was unsteady on his feet

and m issed his nose, tou ching his cheek instead.

                                         -3-
       Next, Sears asked Defendant to perform the walk-and-turn test. Defendant

again began the task before S ears finished the instructions, requiring the officer

to stop him and give the instruc tions aga in. Defendant took three to four steps

and beca me s o uns teady that Se ars “ha d to gra b him ” beca use h e was “afraid

that he wou ld fall out in traffic o r fall down a nd hurt h imself.” Bo th tests were

conducted on a paved roadwa y, with Defendant’s back to the patrol car’s blue

lights. Officer Sears e xplained the implie d cons ent law to D efenda nt, 1 and

Defendant refused a blood a lcohol tes t.2 Sears then arrested Defendant and took

him to the county jail.



       At the jail, county correctiona l officer Kim Rho des me t Sears to admit

Defendant for booking. Both Sears and Rhodes testified that Defendant had

difficulty walking and required assistance entering the jail. According to Rhodes,

when she graspe d Defend ant’s arm to steady him, she smelled a “strong odor of

alcoh olic beverage.” Rhodes testified that she independently concluded on the

standard “intake” document that Defendant was “under the influen ce of alco hol.”

Finally, Rhodes stated that Defendant “stumbled” out of the holding facility when

he was pe rmitted to leave with a responsible p arty.



       Defendant testified on his own behalf at trial. He stated that he was one

hundred percen t disabled due to a past injury to both his feet. He testified that

while painting, he fell and broke both feet, requiring him to be bedridden and



       1
           Defendant testified at trial that he could not read. He told Officer Sears at the scene
that he fully understood the implied consent law prior to signing the refusal form after Sears
read the form to him.
       2
          According to trial testimony, breath alcohol tests were not available in Franklin County
at the time of this offense.

                                               -4-
confined to a wheelchair fo r one yea r. Defend ant reco unted h ow the d isability

causes him great pain and difficulty in walking and reported that he often must

ingest prescription painkillers. He stated that although his fee t hurt the night he

performed the field sobriety tests, he had not ingested any painkillers.          In

addition, he testified that he told Officer Sears before the tests that he could not

perform them bec ause of his disa bility, a fact which Sea rs recollected. Finally,

Defendant stated that he had consumed three or four beers between the hours

of 11:00 a.m. and 2:00 p.m.; that he had not had any alcohol after 2:00 p.m.; and

that in his opinion, he was not impaired.



      The foregoing testimony presented classic questions of fact and c redibility

for the jury to resolve. The jury determined from the evidence that Defendant

was driving under the influence of intoxicants, despite its acceptance or rejection

of testimony regarding Defendant’s disability. We conclude that such a resolution

was properly within the jury’s purview and that the evidence is sufficient to

suppo rt the finding by the jury o f guilt beyon d a reas onable doubt.



      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




                                         -5-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                              -6-
