             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE               FILED
                          FEBRUARY 1998 SESSION
                                                            July 2, 1998

                                                         Cecil W. Crowson
STATE OF TENNESSEE                )                     Appellate Court Clerk
                                  )          NO. 01C01-9703-CR-00094
             Appellee             )
                                  )          PICKETT COUNTY
v.                                )
                                  )          HON. JOHN A. TURNBULL
DAVID L. HATHAWAY                 )
                                  )          (D.U.I.)
             Appellant.           )
                                  )



For the Appellant:                           For the Appellee:

Phillips M. Smalling                         John Knox Walkup
Hassler & Smalling                           Attorney General & Reporter
P.O. Box 340
Byrdstown, TN. 38549                         Lisa A. Naylor
                                             Assistant Attorney General
                                             2d Floor, Cordell Hull Building
                                             425 Fifth Avenue North
                                             Nashville, TN. 37243-0493

                                             William E. Gibson
                                             District Attorney General

                                             Anthony J. Craighead
                                             Assistant District Attorney
                                             145 South Jefferson
                                             Cookeville, TN. 38501-3424




OPINION FILED:____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                        OPINION

       The appellant, David L. Hathaway, appeals as of right his conviction in the

Criminal Court of Pickett County. After a bench trial, he was convicted of driving

under the influence of an intoxicant (“D.U.I.”) and was sentenced to a suspended term

of six (6) months and one (1) hour in the county jail. The trial court revoked

appellant’s driver’s license for one (1) year and ordered him to serve forty eight (48)

hours in jail. Appellant was also ordered to pay a $350 fine.

       On appeal, the appellant challenges the admissibility of the results of his

breathalyser examination and the sufficiency of the convicting evidence. After a

review of the record, we affirm the judgment of the trial court.

       At approximately 9:30 p.m., on May 5, 1995, the appellant left “Moogie’s”

restaurant in Pickett County and drove his pickup truck down a gravel road

approaching Highway 111. State Trooper Gilbert Lee and officers from the Pickett

County Sheriff’s Department were setting up a nearby road block on Highway 111 as it

enters Obey State Park. Trooper Lee approached the appellant’s vehicle on foot as

appellant waited to turn right onto the highway. Trooper Lee testified that his only

reason for stopping the appellant was to check his driver’s license. According to

Trooper Lee, the appellant had not shown any signs of intoxication while driving down

the gravel road.

       When Trooper Lee spoke to the appellant through the truck window, he smelled

a strong odor of alcohol. The trooper asked appellant for his driver’s license and

asked if he had consumed any alcoholic beverages that evening. The appellant

responded that he had drank “a couple of three beers” at Moogie’s restaurant while

eating dinner and he volunteered to step out of the truck to obtain his driver’s license.

       Trooper Lee observed the appellant as he exited the truck and noticed that

appellant had trouble walking steady and maintaining his balance. In addition, the

appellant’s speech was slurred and he fumbled through his billfold while trying to

locate his license. Based upon those observations, Trooper Lee asked the appellant

                                            2
to participate in a field sobriety test. Trooper Lee testified that the appellant ignored

his request and focused entirely upon the safety of his truck, in the event of his arrest.

As other police officers arrived onto the scene, Trooper Lee arrested the appellant for

D.U.I. and made arrangements for him to be transported to the Pickett County jail. No

field sobriety test was conducted.

       Officer Scott Stephens from the Pickett County Sheriff’s Department escorted

appellant to the local jail. He testified that the appellant appeared to have been

drinking based upon the odor of alcohol on his breath, his slurred speech, his glassy

eyes, and his unstable walk. Officer Stephens left the appellant in the custody of

Officer Billy Harmon, who conducted a breathalyser examination. Officer Harmon

observed the appellant at the jail and noted that the appellant had slurred speech, an

unsteady walk, and an odor of alcohol. The results of the breath test revealed that the

appellant had a blood alcohol level of 0.16 percent.1

       The appellant testified in his own defense that although he had consumed

alcohol that evening, he could safely operate his vehicle. He admitted that he drank

four beers during the two hours he spent at Moogie’s restaurant. However, he stated

that it was customary for him to drink beer with dinner and that it did not impair his

ability to drive. Two patrons at Moogie’s restaurant, Denise Wilkerson and Denise

Musgrave, both testified for the defense that they observed the appellant drinking beer

at the restaurant. They testified that the appellant often dined there and enjoyed beer

with his meals.2 In their opinion, the appellant did not appear to be intoxicated when

he left the restaurant on the evening of his arrest.

       In an attempt to reconcile the apparent conflicts in the testimony of the

witnesses, the trial court noted that whether the appellant appeared to be intoxicated

was a separate question from whether he was driving while under the influence of an

       1
           The breath test was conducted on the Intoximeter 3,000.

       2
          Both Denise Wilkerson and Denise Musgrave worked at Moogie’s restaurant and had seen the
appellant there in the past. They both testified that they were not working, but were eating at the
restaura nt on the n ight of app ellant’s arres t.

                                                    3
intoxicant. Relying upon the officers’ observations and the results of the breathalyser

examination, the trial court concluded that the appellant was guilty of D.U.I..

        The appellant first contends that the results of the breath test should not have

been admitted into evidence. He argues that Officer Harmon failed to properly

observe him for twenty (20) minutes before conducting the test.3

        This issue is without merit.

        The appellant correctly states that the officers were required to observe him for

twenty (20) minutes prior to administering the breathalyser examination. See State v.

Sensing, 843 S.W.2d 412, 417-18 (Tenn. 1992). The twenty (20) minute observation

period is part of the forensic services instruction, provided by the Tennessee Bureau

of Investigation, to ensure that the accused does not vomit, smoke, belch, or put any

substance into his mouth that would disturb the findings of the breath test. See id. at

417. If the prosecution cannot establish that the defendant was observed for the

requisite twenty (20) minutes, then the test results are inadmissible at trial. See State

v. McCaslin, 894 S.W.2d 310, 312 (Tenn. Crim. App. 1994).

        In this case, the appellant points to the dispatcher time log at the Sheriff’s

Department to show that Officer Harmon did not observe him for twenty (20) minutes

before administering the breath test. The time log reflects that Officer Harmon took

custody of the appellant sometime after 9:40 p.m.. The time reflected on the

intoximeter indicates that the breath test was administered at 10:00 p.m.. Officer

Harmon testified that he did not follow the time kept at the Sheriff’s Department or the

time on the intoximeter, but instead conducted a twenty (20) minute observation of

appellant in accordance with the time on his wrist watch.4 He stated that his wrist

watch was not synchronized with other clocks at the police department.



        3
          The appellant filed a pre-trial motion to suppress the blood alcohol evidence; however, the trial
court de nied the m otion upo n finding tha t Officer H arm on com plied with the o bserva tion require men t.

        4
          Officer Harmon testified that during the twenty (20) minute observation, the appellant did not
vom it, smok e, belch, o r put anything into his m outh.

                                                      4
         The trial court noted that by not synchronizing the time pieces at the Sheriff’s

Department, the time on Officer Harmon’s wrist watch may have been different from

that in the police records. The court accredited the testimony of Officer Harmon and

ruled that the observation requirement was satisfied.

         In determining the admissibility of blood alcohol evidence, the trial court must

find by a preponderance of the evidence that the Sensing requirements are met. See

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jerry Wayne Edison, No.

03C01-9605-CC-00199 (Tenn. Crim. App. at Knoxville, June 18, 1997), app. granted

(Tenn., Mar. 9, 1998). The trial court’s decision to admit the blood alcohol evidence is

presumed to be correct and will not be overturned on appeal unless the evidence

preponderates otherwise. Odom, 928 S.W.2d at 22-23.5

         We conclude that the trial court did not err in admitting the results of appellant’s

breathalyser examination. The trial court accepted Officer Harmon’s testimony and

determined that he properly observed the appellant before administering the test.

Questions concerning the weight and value of the evidence and resolution of conflicts

in the proof are matters entrusted to the trial judge as the trier of fact. See Odom, 928

S.W.2d at 23; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). We defer to the

trial court’s findings in that respect and conclude that the evidence does not

preponderate against the decision to admit the blood alcohol proof.

         The appellant next contends that the evidence was insufficient as a matter of

law to sustain his D.U.I. conviction. He argues that without the blood alcohol

evidence, the State failed to prove that he was driving under the influence of an

intoxicant. This issue is without merit.




         5
          But see State v. Jerry Wayne Edison, slip op. at 11 -12, in whic h the ma jority of a pan el of th is
Cou rt opin ed th at bre atha lyser e viden ce is c lose ly akin to ex pert te stim ony. A s su ch, th e m ajorit y in
Edison concluded that the admission of breathalyser results should be reviewed under an abuse of
discretion standa rd. See slip op. at 12. Although in appellant’s case, we adhere to the preponderance
of the evidence standard in Odom , we note that the trial court’s decision would be affirmed under the
abuse of discre tion stand ard.

                                                           5
        When a defendant challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution to determine

whether “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, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). W e do not reweigh or re-evaluate the evidence and are

required to afford the State the strongest legitimate view of the proof contained in the

record, including all reasonable and legitimate inferences which may be drawn

therefrom. See Cabbage, 571 S.W.2d at 835.

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

given the evidence, and any factual issues raised by the evidence are resolved by the

trier of fact, not this Court. See id. A guilty verdict rendered by the trial judge 6

accredits the testimony of the witnesses for the State, and a presumption of guilt

replaces the presumption of innocence. See State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973); State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981).

        On appeal, the appellant has the burden of demonstrating to this Court why the

evidence is insufficient to support the verdict returned by the trier of fact. This Court

will not disturb a verdict of guilty for lack of sufficient evidence unless the facts

contained in the record and any inferences which may be drawn from the facts are

insufficient, as a matter of law, for a rational trier of fact to find the appellant guilty

beyond a reasonable doubt. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In this case, the trial judge found that the appellant was guilty of driving a motor

vehicle while under the influence of an intoxicant. Tenn. Code Ann. § 55-10-401(a)

(Supp. 1994). The judge based his conclusion upon appellant’s 0.16 percent blood

alcohol level and the testimony of the three police officers. The appellant concedes

that with the breathalyser evidence, there was sufficient proof to sustain his conviction.



        6
         Although this case involved a bench trial, the findings of the trial judge who conducted the
procee dings ca rry the sam e weight a s a jury verd ict. See State v. T ate, 615 S.W.2d 161, 162 (Tenn.
Crim. App. 1981).

                                                     6
Under Tennessee Code Annotated section 55-10-408(b) (Supp. 1994), evidence that

the defendant had a blood alcohol level of .10 percent or more, at the time alleged,

creates a presumption that the defendant was under the influence of an intoxicant. As

previously addressed, there was no error in the admission of appellant’s blood alcohol

level in this case.

       Moreover, the appellant admitted at trial that he had consumed four beers in

the span of two hours while eating dinner at Moogie’s restaurant. Trooper Lee, Officer

Stephens, and Officer Harmon all testified that the appellant had slurred speech, an

unsteady walk, and an odor of alcohol after he left the restaurant.

       We have reviewed the evidence and conclude that the trial court was justified in

finding beyond a reasonable doubt that the appellant was guilty of D.U.I.. The

appellant has failed to carry his burden of demonstrating otherwise.

       Based upon the foregoing, the judgment of the trial court is affirmed.



                                                ___________________________
                                                WILLIAM M. BARKER, JUDGE



CONCUR:


____________________________
GARY R. WADE, Presiding Judge


____________________________
CURWOOD WITT, JUDGE




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