        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 2,1010

           STATE OF TENNESSEE v. TERRY WAYNE ROBINSON

                    Appeal from the Circuit Court for Madison County
                            No. 09-146 Donald Allen, Judge



               No. W2010-00358-CCA-R3-CD - Filed December 23, 2010


Appellant, Terry Wayne Robinson, was indicted by the Madison County Grand Jury for
driving under the influence (“DUI”) and DUI seventh offense. After a jury trial, Appellant
was found guilty of DUI. Appellant pled guilty to DUI, seventh offense. The trial court
merged the convictions and sentenced Appellant to four years as a Range II, multiple
offender. After the denial of a motion for new trial, Appellant has appealed. Appellant
argues on appeal that the evidence was insufficient to support the conviction for DUI. After
a review of the record, we determine that the evidence was sufficient to support Appellant’s
conviction. Accordingly, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., J OINED.

Gregory D. Gookin, Assistant Public Defender, for the appellant, Terry Wayne Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Assistant Attorney
General; Jerry Woodall, District Attorney General, and Anna Cash, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       On October 11, 2008, Appellant was found “slumped over” behind the wheel of a red
pickup truck at the intersection of Jackson and Whitehall in Jackson, Tennessee. Jackson
Police Officer George Smith, accompanied by Officer Samuel Gilley, found Appellant
unresponsive in the truck after receiving a call from the employees of a nearby convenience
store that the pickup had been parked illegally on the side of the road “for some time.”

       The officers approached the truck and knocked on the windows. Getting no response
from Appellant, Officer Smith opened the door and shook Appellant. There was a strong
odor of alcohol emanating from the inside of the truck. Appellant “kind of came to” after
being shaken “quite a bit” by the officer. Appellant stepped out of the truck. He was very
unsteady on his feet. Appellant informed the officers that he had been drinking since 3:00
a.m. Appellant was discovered by the officers sometime between 2:00 and 3:00 p.m.
Appellant’s eyes were described as “obviously bloodshot” and his speech was “thick
tongued.” Appellant refused to perform any field sobriety tasks and refused to consent to a
blood alcohol test. According to Officer Smith, he had “no doubt” that Appellant was drunk.

       Appellant was arrested for DUI and later indicted by the Madison County Grand Jury
for DUI and DUI, seventh offense. At trial, Appellant testified that he had worked late the
night before his arrest helping his brother-in-law build a shed. Appellant stated that he went
to bed around 1:00 a.m. and then got up around 7:00 a.m. to work on a roofing job.
Appellant claimed that he fell asleep on the side of the road in the truck while he was waiting
on his cousin to return with a part to repair the truck. Appellant stated that, the next thing
he knew, officers were waking him up. Appellant denied telling the officers that he was
drinking. Instead, he claimed that he refused the tests because he was “irritated.”

       At the conclusion of the proof, the jury convicted Appellant of DUI. After being
convicted, Appellant pled guilty to DUI, seventh offense. At a sentencing hearing, the trial
court merged the convictions and sentenced Appellant to serve four years in incarceration as
a Range II, multiple offender. Appellant filed a motion for new trial. The trial court denied
the motion. Appellant filed a timely notice of appeal.

                                           Analysis

       On appeal, Appellant argues that the evidence was insufficient. Specifically,
Appellant argues that “he was only in the vehicle while waiting on his cousin to return with
some parts” and the officer confirmed that there were “work tools” found in the vehicle.
Further, Appellant denied that he told the officers he had been drinking. In other words, the
testimony at trial given by the State gave “credence” to Appellant’s testimony. The State
disagrees.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

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and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
defendant is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from reweighing or reevaluating the evidence when considering the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).

      The statute setting out DUI is found at Tennessee Code Annotated section 55-10-401
which provides:


       (a) 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, or while on the premises of
       any shopping center, trailer park or any apartment house complex, or any other
       premises which is generally frequented by the public at large, while:

       (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug
       producing stimulating effects on the central nervous system; or

       (2) The alcohol concentration in such person’s blood or breath is
       eight-hundredths of one percent (.08%) or more.

        Appellant argues for purposes of attacking his DUI conviction that there was not
sufficient evidence that he was in control of the truck. In order to determine if a defendant
was in physical control of a vehicle for DUI purposes, the trier of fact looks to the totality
of the circumstances. These include: “the location of the defendant in relation to the vehicle,

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the wherabouts of the 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); see also State v. Butler, 108 S.W.3d
845, 850 (Tenn. 2003). We conclude that there was sufficient evidence to support the DUI
conviction. When Officers Smith and Gilley found Appellant, he was slumped over in the
cab of the truck on the side of the road. The keys were in the ignition. Appellant had to be
shaken before he would awaken and smelled of alcohol. Appellant was unsteady on his feet,
had bloodshot eyes, and slurred speech, although Appellant denied this at trial, according to
police, Appellant stated that he had been drinking all night. Appellant denied this at trial.
We conclude that when this evidence is taken in a light more favorable to the State, a
reasonable trier of a fact would conclude that Appellant was guilty of DUI. Appellant is not
entitled to relief.

                                          Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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