         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 24, 2004

             STATE OF TENNESSEE v. CARLA JUANITA PRINCE

                  Direct Appeal from the Circuit Court for Franklin County
                            No. 13983    Buddy D. Perry, Judge



                     No. M2003-01098-CCA-R3-CD - Filed April 21, 2004


Following a jury trial, the defendant, Carla Juanita Prince, was convicted of DUI, first offense, a
Class A misdemeanor, and reckless driving, a Class B misdemeanor. She was sentenced,
respectively, to eleven months, twenty-nine days, suspended except for forty-eight hours, and six
months, suspended except for forty-eight hours. The two forty-eight-hour jail terms were ordered
to be served consecutively, and the probationary terms were ordered to be served concurrently.
Additionally, her driver’s license was revoked for one year and she was fined a total of $360. On
appeal, the defendant argues that the evidence was insufficient to support her conviction for DUI.
Following our review, we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE, JJ., joined.

Philip A. Condra, District Public Defender, and David O. McGovern, Assistant Public Defender, for
the appellant, Carla Juanita Prince.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       Franklin County Sheriff’s Deputy Todd Hindman testified that on February 25, 2001, at
approximately 1:45 a.m., he observed the defendant, driving a Chevrolet Camaro, pull into the
parking lot of Woods Country Mall off Highway 127, pull back out, attempt to pull in again, run
upon an eight-inch high concrete curb, back out into the highway, pull back into the parking lot, and
then exit through a side entrance. After following her for “maybe a 100 feet,” Hindman activated
his blue lights and stopped the defendant. He “noticed that her clothes were real disorganized. Her
shirt was misbuttoned, her pants were open. I noticed the smell of alcohol coming from the vehicle.”
When Hindman asked the defendant if she had been drinking, she replied that she had consumed four
beers. Hindman said that the defendant’s speech was slurred “to the point that it was somewhat
difficult to understand her,” and she was “unstable about her feet, but able to stand.” He then asked
the defendant to stand in front of his patrol car, facing her vehicle, and perform three field sobriety
tests. The defendant informed him that she was under a doctor’s care for a back injury and refused
to take the one-legged stand test. Hindman said that he had to explain the finger-to-nose test to the
defendant “multiple times ‘cause as [he] was explaining the test [the defendant] was trying to go
ahead and do the test.” The defendant did not follow his instructions and was swaying. In
Hindman’s opinion, the defendant failed the finger-to-nose test. Regarding the heel-to-toe test,
Hindman said, “[S]he failed the test. She missed several times heel to toe, very unsteady crossing
her feet over.” He said that he was certain she had failed that test because he had placed that
information in the state warrant.

        While Hindman was transporting the defendant to the jail, the defendant told him that “the
only thing [she was] under the influence of [was] Darvocet and Soma” and that her doctor had
prescribed them. Hindman then radioed dispatch that he was taking the defendant to the Southern
Tennessee Medical Center, instead of the jail, for blood alcohol and drug tests. At the hospital,
Hindman explained the implied consent form to the defendant and asked her to submit to a blood
alcohol test and a drug screen, both of which she refused. He then transported her to the jail, read
the implied consent form to her, and asked her to sign it indicating her refusal to submit to blood
alcohol and drug tests, but she refused to sign the form. Correctional Officer Mike Saint John
witnessed the defendant’s refusal to sign the form.

        On cross-examination, Deputy Hindman said that it was raining during the defendant’s field
sobriety tests. As to the defendant’s finger-to-nose test, Hindman said that she touched the bridge
of her nose which was within one-half inch of the tip of her nose. Asked if a breathalyzer test would
have been beneficial to the jury, Hindman responded that he “could not determine whether it was
the alcohol or her prescription medication that was causing her impairment.” On redirect, Hindman
said that the odor of alcohol did not dissipate when the defendant got out of her vehicle and that he
smelled the odor of alcohol coming from her person. In Hindman’s opinion, the defendant was
intoxicated.

        Franklin County Sheriff’s Deputy Ross Peterson testified that he responded to the scene and
that he “noticed a strong odor of an alcoholic beverage coming from [the defendant’s] person.” He
said that the defendant’s speech “seemed to be slurred, her balance seemed to be unsteady, her eyes
looked kind of droopy,” and “her pants were unzipped there the whole entire time that . . .
[Hindman] was standing there talking to her.” The defendant was in the process of performing the
field sobriety tasks when Peterson arrived, and it appeared to him that “she was having trouble
understanding orders and applying what [Hindman] was asking her to do, in other words, a little non-
compliance there.” Peterson said that he waited at the scene for a wrecker to tow the defendant’s
vehicle and that he had no contact with the defendant after she left with Hindman.


                                                 -2-
        Correctional Officer Michael Saint John testified that he was working in the booking area
of the jail on February 25, 2001, when Deputy Hindman brought in the defendant who smelled of
alcohol and was “staggering pretty much and off balance of her feet.” He witnessed Hindman
reading the implied consent form to the defendant and her refusal to sign it. Saint John said that the
defendant refused to give him the necessary booking information and that “[a]ll she wanted to do
was stand there and fuss and argue with us and cuss and carry on.” He made a notation in the jailer’s
log book regarding the problems he had with the defendant and identified a copy of it which was
admitted into evidence. Reading from the notation entered in the log book at 3:10 a.m., Saint John
said, “[The defendant] being belligerent. . . . [S]he would not answer her questions nor could we get
a picture at this time.” In Saint John’s opinion, the defendant was under the influence of alcohol.
Saint John said there was a video camera in the booking area of the jail, and it had been activated
when the defendant was brought in because she was a female. He said that the jail administrator was
in charge of the tapes, and he did not know how long the tapes were retained.1

        Celeste Simmons, the defendant’s daughter, testified that she went to the defendant’s house
around lunch time on the day before her arrest and spent the night there. She said the defendant did
not drink any alcohol that day but had done so the day before. She thought the defendant had taken
some medication that day but did not know what time she had taken it. According to Simmons, the
defendant was not stumbling, her speech was not slurred, and she did not have trouble standing after
taking the medication. Sometime after Simmons went to bed, a friend of the defendant, Terri,
telephoned wanting to speak to the defendant. Simmons took the telephone to the defendant who
was in bed. She did not smell any alcohol on the defendant at that time. Simmons then went back
to bed and was awakened between 4:00 and 5:00 a.m. the next morning when the defendant called
her “to come get her out of jail.”

        Amy Ingle, the defendant’s daughter-in-law, testified that she and her son had spent most of
the day before the defendant’s arrest with the defendant at her home. When Ingle left the defendant’s
home between 6:00 and 7:00 p.m. that evening, the defendant did not smell of alcohol, did not have
slurred speech or droopy eyes, and was not acting belligerent. Ingle denied that anyone had been
drinking that day but acknowledged that, on the preceding evening, her husband and the defendant
had drunk beer until about 12:00 a.m. while they were visiting in the defendant’s home. Asked how
much of the twelve-pack of beer the defendant had drunk, Ingle replied, “She couldn’t have drunk
too much. I know my husband probably drank more than she did.”

        The defendant testified that she was forty-seven years old at the time of her arrest and that
she was currently on disability as a result of bulging disks in her neck, pain in her shoulders and legs,
and arthritis in her knees. She said that she was under a doctor’s care for these conditions at the time
of her arrest. On the Friday before her Sunday morning arrest, the defendant’s son, daughter-in-law,
daughter, and two grandchildren came to her home for the evening meal. Her son brought a twelve-


         1
          At the close of the proof, the State and defense counsel stipulated that any videotape made at the jail during
the defendant’s booking process was no longer available because the tapes were destroyed after one year.



                                                          -3-
pack of beer, and she “had three or four beers with him.” On the following day, Saturday, her
daughter and granddaughter came to her home around lunch time, and her daughter-in-law and
grandson arrived later in the day and stayed until “after dark.” Her daughter and granddaughter spent
the night in her home. The defendant denied drinking any alcohol that Saturday but acknowledged
taking “pain pills,” muscle relaxers, and anti-inflammatory medication that morning between 6:30
and 7:00 a.m. She said she went to bed around 9:30 or 10:00 p.m. and, sometime after that, her
daughter awakened her and told her that Terri was on the telephone. After speaking with Terri, the
defendant left for Terri’s house. En route, she noticed three police cars at the Woods Country Mall,
missed her turn, pulled into the parking lot, bumped a curb because her car was low to the ground,
backed out onto the road, and “c[a]me back down and made [her] turn the way [she] was supposed
to.”

        As to the field sobriety tasks, the defendant said she told the officer she could not perform
them because of her back, leg, and neck problems. She said that the only test she performed was the
finger-to-nose test, during which she touched her nose and did what the officer told her to do.
According to the defendant, her “[h]ealth had everything to do with that test.” She did not perform
the heel-to-toe test because she did not have “very good balance.” The defendant said it was “windy
and storming and raining” at the time of her arrest. She acknowledged that the officer took her to
the hospital and asked her to submit to a blood test, which she refused because she had a tendency
to faint when having blood drawn. She said the officer did not offer her a breathalyzer test. She
informed the officer that she was not drunk and that the only substance that could possibly have been
in her system was her medication which she had taken Saturday morning. Asked about the odor of
alcohol emanating from her vehicle when Deputy Hindman stopped her, the defendant explained that
her son had spilled a beer in her car on the Friday before her arrest.

        On cross-examination, the defendant said it took her about twenty minutes to drive from her
house to the Woods Country Mall. She said that the last time she had drunk any beer was about
thirty hours prior to her arrest when she drank three or four beers. Asked about her disheveled
appearance at the time of her arrest, the defendant said she did not remember her clothes “being that
way.” She said she had “jumped out of bed and put [her] clothes on” and acknowledged that she
“looked pretty rough.” The defendant said she had been taking Soma for “a long time” and agreed
that Soma and Darvocet are “pretty powerful narcotics.” Asked if she had combined alcohol with
her medication on the Friday before her arrest, the defendant said, “I had take[n] my medicine that
morning and drank the alcohol that afternoon.” She denied that doing so had constituted “a
combination” but agreed that Darvocet, Soma, and alcohol “should not go together.” She
acknowledged that she had read the literature which accompanied her medications from the
pharmacy and said she knew she was not supposed to combine alcohol with her medications. She
did not recall having any difficulties with the jailers at the jail on the morning of her arrest but
acknowledged that she refused to answer their questions.




                                                -4-
                                              ANALYSIS

                                     Sufficiency of the Evidence

        The defendant argues that the evidence was insufficient to support her conviction for DUI,
saying that “any conclusion drawn by the officer as to [her] completion of the field sobriety tasks
were [sic] overshadowed by the fact that [she] had a back injury for which [s]he was under [a]
doctor’s care.” She also argues that the unavailability of the videotape made during her booking
process, “and the fact that the tape was destroyed for no apparently good reason, is indicative that
the State did not present sufficient evidence to convict [her] of the charged crimes.” She claims that
it was “blatantly unfair . . . to be convicted of a crime when the arresting agency had available such
significant proof and yet failed to maintain it properly in a manner that the jury could have observed
it and made a determination with all facts presented to them.”

         When the sufficiency of the evidence is challenged on appeal, the relevant question of the
reviewing court 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, 61 L. Ed. 2d 560,
573 (1979); see also Tenn. R. App. P. 13(e) (“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992);
State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with which
a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       The defendant was convicted of violating Tennessee Code Annotated section 55-10-401(a),
which provides:

                        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:




                                                   -5-
                         (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 ten-hundredths of one percent (.10%) or more.2

       Viewed in the light most favorable to the State, there was sufficient evidence from which the
jury could conclude that the defendant was under the influence of alcohol at the time of her arrest.
 Deputy Hindman, the arresting officer, testified that the defendant had an odor of alcohol coming
from her person and her vehicle, her speech was slurred, and she was unstable on her feet. When
Hindman asked the defendant if she had been drinking, she told him she had consumed four beers.
Deputy Peterson testified that the defendant smelled strongly of alcohol, her speech was slurred, her
eyes were “kind of droopy,” and her balance was unsteady. Correctional Officer Saint John testified
that when the defendant was brought in to the jail, she still smelled of alcohol and was staggering.
This court has previously held that the testimony of the arresting officer is sufficient to prove the
offense of driving under the influence. See State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim. App.
1993). Accordingly, we conclude that the evidence was sufficient for a reasonable jury to find the
defendant guilty of DUI.

                                                CONCLUSION

         Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

                                                               ___________________________________
                                                               ALAN E. GLENN, JUDGE




         2
           Effective July 1, 2003, subsection (2) was amended to: "The alcohol concentration in such person's blood or
breath is eight-hundredths of one percent (.08%) or more."

                                                         -6-
