          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                         FILED
                                                                      February 7, 2000
                           NOVEMB ER SESSION, 1999
                                                                     Cecil Crowson, Jr.
                                                                    Appellate Court Clerk



STATE OF TENNESSEE                     )     C.C.A. NO. 03C01-9902-CC-00071
                                       )
             Appellee,                 )
                                       )     HAMBLEN COUNTY
V.                                     )
                                       )
                                       )     HON. JAMES E. BECKNER, JUDGE
RONALD LOCKHART,                       )
                                       )
             Appe llant.               )     (DUI, THIRD OFFENSE)



FOR THE APPELLANT:                           FOR THE APPELLEE:

GREG W. EICH ELM AN                          PAUL G. SUMMERS
District Public Defender                     Attorney General & Reporter
1609 College Partk Drive, Box 11
Morristown, TN 37813-1618                    ERIK W. DAAB
                                             Assistant Attorney General
                                             2nd Floor, Cordell Hull Building
                                             425 Fifth Avenue North
                                             Nashville, TN 37243

                                             C. BE RKE LEY B ELL, J R.
                                             District Attorn ey Ge neral

                                             JOHN F. DUGGER, JR.
                                             Assistant District Attorney General
                                             363 Hamblen County Justice Center
                                             510 Alliso n Street,
                                             Morristown, TN 37814




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION
      Defendant Ronald Lockhart appea ls as of right from his co nviction by a

Hamblen County jury of driving under the influenc e, third offen se, and driving with

a revoked license. Defendant challenges the sufficiency of the evide nce to supp ort
his conviction of driving un der the influ ence. After a careful review of the record, we

find no erro r, and affirm the judgm ent of the tria l court.



                                          I. Facts



       On Augus t 14, 1998, Officer Randall Noe of the Morristown Police Department

observed a Che vrolet van leave the Buffalo Trail shopping center in Morristown

around 9:00 PM. Officer Noe followed the van for a short distance, and when the

van was o n She rwood Drive th e office r obse rved th e van d rift over th e cen ter line

and move back within its lane of travel. The van then turned on to N orth Lib erty Hill

Road, a three lane road with one lane of travel in each direction, and a center lane

for turning. On two occasions Officer Noe observed the van drift in to the turn lane,

and move back within its lane of travel. The officer also saw the van weave within

its lane of trav el. The o fficer pulled th e van ove r.



       Defendant was d riving th e van, a nd O fficer N oe as ked h im for h is driver’s

license.   Defend ant cou ld not prod uce on e.        At this po int the officer became

conce rned tha t Defend ant was intoxicated :



       I noticed that while he was s tandin g that h e didn ’t have a particu larly
       steady stand, that he was unsteady on his feet. He didn’t see m to have
       an appropriate balance to me. A nd in spe aking to h im face to face, I
       could sme ll the od or of an alcoh olic beverage coming from his person
       and on his breath.


Officer Noe asked Defendant if he had been drinking, and Defendant replied that he

had consumed “quite a few drinks.” We note th at De fenda nt’s brie f desc ribes th is

moment with a quote from Martin Luther: “Hier stehe ich. Ich kann nicht anders.

Gott helfe mir. Amen.” Martin Luther, Speech at the Diet of Worms, (Apr. 18, 1521)

(Here stand I. I can do no other. G od help m e. Amen .)




                                              2
       Officer Noe next administered two field sobriety tests–the “walk and turn” and

“one-leg stand.” The “walk and turn” test requires the subject to walk in a straight

line for nine steps, placing one foot directly in front of the other, touching the heel of

the moving foot to the toe of the p lanted foo t. After nine steps, the subject is to turn

around, and walk nine steps ba ck to the spot he starte d from in the sa me m anner.

Officer N oe des cribed ho w Defe ndant fa iled the “wa lk and turn ”:



       What I witnesse d . . . is that whe n he wa s asked to stand w ith his heel
       touching his toe and to listen to the instruc tion tha t he co uldn’t k eep h is
       balance, that he could not keep his heel touching his toe stand ing still.
       He tried to start walking on into the test without waiting for the
       instructions to be completed . . . . Another thing that I noticed is that
       during the first nine steps and also on the second nine steps that he
       missed his heel to toe contact with the steps that he took. There was
       no mark line available on the pavement at the point these tests were
       given, but I also noticed that using his best judgment that he didn’t stay
       in a straight line in walking . . . . I’d asked that nine steps be taken and
       on the way down he took eleven, and on the way back he took eleven.


       The “one-leg stand” test requires the subject to stand on one leg (the subject

chooses which one) a nd hold the other leg out in fro nt of him, a bout six inc hes off

the ground, while counting to 30. At the sam e time, the officer looks at his watc h to

see how much time actually elapses. Office Noe also testified how Defendant failed

the “one -leg stand ’ test:



       Mr. Lockhart made two attempts to do this test after he was instructed
       what to do. On b oth attem pts, in particu lar on the firs t attemp t, he put
       his foot down three times within the first 10 seconds of trying the tes t.
       And base d on m y trainin g . . . if that o ccurs . . . there is probably a
       danger that the person could fall . . . . I stopped the first test and made
       sure again that he understood the instructions . . . . He tried the test
       again, and again the result was that within the first ten seconds his foot
       was down three times, and I stopped the test to prevent anything that
       could harm him.


Both tests were reco rded by a video camera o n a police cruiser, and the tape

substa ntiates O fficer Noe ’s descrip tion of even ts.



       Officer Noe testified that at this point he believed Defendant to be drunk, and

“there was no way that I w as going to put him back behind the steering wheel o f a

                                              3
vehicle.” Office r Jack Everh art, wh o bac ked-u p Offic er No e for this particular stop,

also testified that at the conclusion of the field sobriety tests he believed Defendant

to be drunk. At this point Officer Noe placed Defendant under arrest and transported

him to the Morristow n Police D epartm ent.



       At the police depa rtment De fendant con sented to take a breathalyzer. Officer

Noe testified that all three tests were inconclusive because Defendant blew an

insufficient amoun t of air into the machine each time: “It appeared to me that

[Defen dant] would suck on the hose instead of blow into the hose.” Defendant then

refused to take a blood test, citing his fear of needles.



       At trial Defendant stipulated that he had two prior DUI’s, and that his driver’s

license was revoked at the time of the traffic stop at issue. The trial court, however,

chose to proceed and charge the jury with the count of driving with a revoked

license.    Defendant also presented proof that explained otherwise incriminating

evidence against him. Defendant testified that his van’s front tires “scrub” the front

fender, and Defendant testified that he used Listerine around 5:00 PM. Defendant

and Defendant’s sister also testified that he had poor balance and difficulty walking

after he had be en sitting for a period of time, a condition that Defendant attributed

to his employment as a roofer. Specifically, Defendant testified as to the “one leg

stand” te st:

       Q: W hat prob lems, if an y, do you w ant to tell the ju ry about th at test?
       A: That’s part of where I don’t keep my balance good. It’s hard to stand on
           one leg.
       Q: And yet yo u’re a roofer?
       A: I’m a laborer for roofers.
       Q: You go up on roofs, though?
       A: Yes, sir.
       Q: How do you keep from falling?
       A: I don’t walk heel to toe.




                                       II. Analysis




                                            4
      When 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 rationa l trier of fac t could have found the essential elements of the

crime beyond a reaso nable d oubt. State v. Shep herd, 902 S.W.2d 895, 903 (Tenn.

1995) (citing Jack son v. V irginia, 443 U.S. 307, 322-25 (1979)).             Questions

concerning the credibility of the witnesses, the weight and value to be given the

evidence, as well as all factual issue s raised by the evid ence, are res olved by the

trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.

1987). Nor m ay this Court re weigh o r reevalua te the evide nce. State v. Cabbage,

571 S.W .2d 832, 835 (Tenn. 197 8).



      A jury verd ict app roved by the tr ial judg e acc redits th e 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 appeal, the State is entitled to the strongest legitimate view of the

evidence and all rea sonab le inferenc es there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the pres umptio n of innoc ence a nd repla ces it with

a presumption of guilt, the accused has the burden in this Court of illustrating why

the evidence is insufficient to suppo rt the jury verd ict returned by the trier of fa ct.

State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2).



      Defendant argues that the observations of Offic ers N oe an d Eve rhart, th e field

sobriety tests, and the videotape thereof, are insufficient to prove that Defendant was

intoxicated. The c rux of th is argument is that there are alternative explanations for

Defendant’s erratic driving, the aroma of alcohol about his person, and poor

performance on the field sobriety tests; i.e. mechanical proble ms c ould have caused

the non-linear travel of Defendant’s vehicle, lingering Listerine gave Defendant an

alcohol-type perfume, and Defendant’s many years of work as a roofer rende red him

unab le to walk a straight line on a flat surface. As ins piration for this latter argument

Defendant cites Kant’s thoughtful observation that “[o]ut of the crooked timber of

huma nity no straigh t thing was ever ma de.” Imm anuel K ant, Idea for a Universal

                                            5
History from a C osmo politan Point of View, reprin ted in Kant On History 17-18

(Lewis W hite Beck, ed., M acMillan, 1963 ) (1784).



       The above evidence presented classic questions of fact and credibility for the

jury to resolve. The jury rejected the testimony of Defendant, and accepted that of

Officers Noe a nd Eve rhart.     This Court’s role does not include reweighing the

evidence. The State presented sufficient evidence such that a rational trier of fact

could have found, beyond a reasonable doubt, that Defendant was “under the

influence” within the meaning of the statute. Although Defendant denied such, and

presen ted evide nce to ex plain, it was fo r the jury to de cide wh o to believe .



                                    III. Conclusion



       For the above reasons w e affirm Defendant’s conviction of driving under the

influence, third offense, and driving with a revoked license.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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