             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                            AUGUST 1999 SESSION
                                                                     FILED
                                                                     October 18, 1999

STATE OF TENNESSEE,            )                                   Cecil Crowson, Jr.
                               )                                  Appellate Court Clerk

             Appellee,         )    No. 03C01-9802-CR-00062
                               )
                               )    Washington County
v.                             )
                               )    Honorable Arden L. Hill, Judge
                               )
TOMMY S. FRANKLIN,             )    (Driving Under the Influence- aiding and
                               )    abetting)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

Debbie Huskins                      Paul G. Summers
Assistant Public Defender           Attorney General of Tennessee
Post Office Box 996                        and
Johnson City, TN 37605              Todd R. Kelley
(AT TRIAL)                          Assistant Attorney General of Tennessee
                                    425 Fifth Avenue North
                                    Nashville, TN 37243
Julie A. Rice
Post Office Box 426                 Joe C. Crumley
Knoxville, TN 37901-0426            District Attorney General
(ON APPEAL)                                 and
                                    Michael Laguardia
                                    Assistant District Attorney
                                    Post Office Box 38
                                    Jonesborough, TN 37659




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



              The defendant, Tommy S. Franklin, appeals as of right from his conviction

by a jury in the Washington County Criminal Court for driving under the influence (DUI)-

aiding and abetting, a Class A misdemeanor. He was sentenced to eleven months and

twenty-nine days, of which five days were to be spent in the county jail with the

remainder on probation. He was fined fifteen thousand dollars. On appeal, the

defendant contends that the evidence is insufficient to support his conviction. We affirm

the judgment of conviction.



              At trial, Johnson City Police Officer Mike Butler testified that on January

27, 1996, he responded to an accident involving the defendant at about 10:30 p.m. He

said that upon arrival, he saw a truck that had been hit, and the driver stated that

another vehicle had hit him and stopped further up the road. Officer Butler said he

found the defendant’s car up the street.

He testified that EMS workers were examining the defendant at a nearby apartment.

He said the defendant stated that “they” hit him. Officer Butler said the defendant had

his car keys in his pocket.



              Officer Butler testified that the defendant was very intoxicated. He said

the defendant was staggering, had slurred speech and was glassy-eyed. He said that

the defendant’s blood alcohol content was .34 and that the defendant failed the field

sobriety tests. Officer Butler said that as he prepared to administer a blood alcohol test,

the defendant told him that he had not been driving the car. Officer Butler stated that

the defendant went back and forth on the issue of who was driving the car. He said the

defendant initially stated that he was driving. He said the defendant later said he had




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consumed too much alcohol to be driving. He said the defendant could not name or

describe the person who was driving.



             The defendant testified that he draws disability for alcoholism. He

admitted that he had a previous conviction for aggravated robbery. He said that on

January 27, he drove to the Silver Spur and drank with some men. He said he became

too intoxicated to drive, and he asked one of the men to drive him home. When asked

if he knew the driver, the defendant stated that “a drunk is a drunk, and I don’t know

who he was.” The defendant said that on their way home, his car was sideswiped. The

defendant said he exited his car and went to an apartment to telephone for help. He

said that the man driving his car ran off and that he had not seen him again.



             The defendant testified that the men with whom he was drinking were

drinking harder than he was. He admitted to letting a drunk person drive his car, but he

later stated that the driver looked fine. He said the only thing he could remember about

the driver was that he had long brown hair. He said he did not go back to the Silver

Spur to try to find the driver because he would be tempted to drink. Upon the foregoing

proof, the defendant was convicted of DUI- aiding and abetting.



             The defendant contends that the evidence is insufficient to support his

conviction. He argues that the state did not prove that the person who drove his car

was intoxicated. The state contends that the evidence is sufficient.



             Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that


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the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

              The statute prohibiting DUI provides as follows:

              It is unlawful for any person to drive or to be 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:

              (1) Under the influence of any intoxicant . . .; or

              (2) The alcohol concentration in such person’s blood or breath
              is ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a). Pursuant to Tenn. Code Ann. § 55-10-201, any

person who aids or abets in the commission of driving while under the influence of an

intoxicant as a principal, agent or accessory is guilty of DUI.



              The defendant contends that the state did not prove that the driver of the

defendant’s car was intoxicated. However, at trial, the defendant admitted that he let a

drunk person drive his car. He stated that “a drunk is a drunk, and I don’t know who

[the driver] was.” He stated that the men with whom he was drinking were drinking

harder than he was. The jury obviously accredited this portion of the defendant’s

testimony. In the light most favorable to the state, we hold that the evidence is

sufficient. See Williams v. State, 352 S.W.2d 230, 230 (Tenn. 1961) (holding that the

defendant “was the owner of the car, was present on the front seat with [the driver],

permitted him to drive the car, knowing he was drunk, and thus was guilty of [DUI].”).



              In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.




                                                          _________________________
                                                          Joseph M. Tipton, Judge


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CONCUR:



__________________________
John Everett Williams, Judge



___________________________
Alan E. Glenn, Judge




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