         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                            APRIL SESSION, 1997           June 6, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9606-CC-00281
                               )
      Appellee,                )
                               )
                               )    COFFEE COUNTY
VS.                            )
                               )    HON. JOHN W. ROLLINS
BRIAN L. BRASHEARS,            )    JUDGE
                               )
      Appe llant.              )    (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF COFFEE COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT S. PETERS                    CHARLES W. BURSON
100 Firs t Avenu e, S.W .           Attorney General and Reporter
Win cheste r, TN 37 398
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    C. MICHAEL LAYNE
                                    District Attorney General

                                    STEPHEN E. WEITZMAN
                                    Assistant District Attorney General
                                    P.O. Box 147
                                    Manchester, TN 37355




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                      OPINION

         This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure . The Defe ndant, Brian L . Brashears, w as convicted b y a

Coffee County jury of driving under the influence of an intoxicant, third offense,

and driving on a revoked license.1             The jury fined him $250.00 for each offense

and the trial c ourt se ntenc ed him to 11 months and 29 days for driving under the

influence with 180 days to be served in the Coffee County Jail and the remainder

to be served on probation. His driver ’s license was revoked for 10 years. The

Defendant was sentenced to 30 days for driving on a revoked license, to be

served consecutively to the DUI sentence. The Defe ndan t appe als his conviction

for driving u nder th e influence of an intoxicant raising one issue: that the

evidence was insufficient to support a verdict of guilt. W e affirm the judgment of

the trial cou rt.



         When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favora ble

to the pros ecution, a ny rationa l trier of fact cou ld have fo und the essential

eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

S.W.2d 620, 62 3 (Ten n. Crim. App. 1987).                Nor may this court reweigh or




1
    Tenn. Code Ann. §§ 55-10-401, 55-50-504.

                                                 -2-
reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).




      A jury verdict approved by the trial judge accredits the 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 stron gest legitim ate

view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493

S.W.2d at 476.



      The State presented the following proof at tria l. On the evenin g of Ap ril

17, 1994, at approximately 9:00 p.m., Charles Holder was returnin g hom e via

Blanton’s Chapel Road in Coffee County. He noticed headlights approaching him

at approximately a quarter of a mile away. He dimmed his lights because the

road curved to the left. As he approached the turn, the other car was no longer

on the road. Seeing that there was nowhere to turn off the road, Mr. Holder

stopped his veh icle and star ted lookin g off the sid e of the roa d. A few seconds

later, he saw a car off the road. A man was standing outside the driver’s side

door with his hands on top of th e car. Mr. H older direc ted his he adlights towards

the scene . He ask ed the m an, later ide ntified as the Defen dant, whether he was

alright, if he ne eded med ical attention, a nd if he needed a tow truck.       The

Defendant mumbled answers, which Holder could not understand. He noted that

the Defendant’s speech seemed slurred and that he appeared unsteady on his

                                         -3-
feet. He moved down the side of the car while leaning on it. Holder reported that

the Defendant refused help and was reluctant to speak with him.



      Holder left the scene, went h ome, and called his next-doo r neighbor,

Shannon Banks. He told him about the accident because the Defendant had

knocked down a portio n of Banks’ fe nce. B anks was c once rned th at the c attle

in his field would get out onto the road. Banks called law enforcement and

reported the wreck, the n proce eded to the scen e. He arrived ap proximately five

to ten minu tes later. W hen he arrived, he saw the vehicle off the road, but the

Defendant was no t there. After anothe r ten to fifteen minute s, Deputy She riff

Morris Vanattia arrived.       Ten to fifteen minutes after that, the Defendant

appeared in the field beyond the vehicle. Deputy Vanattia spoke with him.



      The Defe ndan t looke d con fused , and w as talk ing slo wly and mum bling.

Depu ty Vanattia asked the Defendant about the owner and driver of the vehicle.

He denied driving the car and stated that his older brother Mike owned the car

and was driving it. His brother later arrived on the scene and denied driving the

vehicle. The De fendan t then con fessed that he ha d been driving.            De puty

Vann atia conducted field sobriety tests, which the Defe ndant fa iled to com plete

successfu lly. He was arrested and taken to the Sheriff’s Department, where he

was administered a breath alcohol test at approximately 11:00 p.m. It registered

a .15% blood alcohol level. The State verified that, at the time the Defendant was

driving, his driver’s license had been revoked.



      The Defendant presented proof that he had left the scene and gone to his

brother Scott’s hous e. Sco tt Bras hears testified that the Defe ndan t arrived at his

                                          -4-
house shortly after 9 :00 p.m ., and wa s upse t that he had wrecked his car. He

stated the Defendant drank three “Icehouse” beers in appro ximately tw enty

minutes. Scott B rashe ars als o adm itted tha t he ha d prev iously made a statement

in which he stated the Defendant drank two beers. Scott Brashears testified that

the Defendant did not appear intoxicated when he arrived at the house, but

admitted that he himself had been drinking beer and was himself intoxicated.

Therefore , his ability to perceive the Defenda nt’s level of intoxication may h ave

been im paired.



      The Defe ndan t testified that his car’s tire had a blowo ut that c ause d him

to run off the road. T he Defen dant reported that he did not drink anyth ing un til

he reached his brothe r’s house . He stated that the “Icehouse” beers had a higher

alcohol level, thu s expla ining the .15% reading. He testified that he weighed

approximately 135 pounds.



      The Defendan t contend s that the e vidence does n ot supp ort the gu ilty

verdict for driving under the influence of an intoxicant because the State did not

prove that he was intoxicated when he was operating his veh icle. Th e app licable

statutes at the time the Defendant was convicted read:



      (a) It is unlaw ful for an y perso n to drive or to be in phys ical control of
      any autom obile or other motor driven vehicle on any of the public roads
      and highways of the state, or on any stre ets or alleys, or while on the
      premises of any shopping center, trailer park or any apartment house
      complex, or any other prem ises which is gen erally frequented by the
      public at large, while under the influence of any intoxicant, marijuana,
      narco tic drug, o r drug p roduc ing stimulating effects on the central
      nervous system.


Tenn. C ode Ann . § 55-10-401 (1988).

                                         -5-
      (b) Evidence that there was, at the time alleged, ten-hundredths of one
      percent (.10%), or more, by weight of alcohol in the defendant's blood,
      shall create a presumption that the defendant was under the influence
      of such intoxica nt, and that his or her a bility to drive was impaired
      thereby, sufficiently to constitute a violation of § 55-10-401.


Tenn. C ode Ann . § 55-10-408 (1988).



      The Defendant was shown to have been d riving his vehicle on a p ublic

roadway in Coffe e Cou nty. Ch arles H older s aw the vehicle approaching him, and

very shortly after it left the road, he witnessed the Defendant leaning against the

car. Moreover, the Defendant admitted to driving the car. These elements of the

offense have been satisfied.



      As for whether the Defendant was intoxicated when driving, the State put

on proof that he was observed by Mr. Holder to mumble, slur and appear

unsteady on his feet just after the wreck. After he returned to the scene, he was

unab le to perform the field sob riety tests and continued to mumble and slur. The

State also showe d that the Defe ndant registered a blood alcohol level of .15%

nearly two hours after the accident. This is above the legal limit of .10% and

raises a rebuttable presumption that he was intoxicated. The Defendant argues

that he was not intoxicate d then, but only after he drank beer at his brother

Scott’s house . The Defendant asserts that the level of alcohol in the beer he

drank after the accident supp orts this finding, yet, whether he drank two or three

beers is in question. He also stated that he called his older broth er, Mike, to pick

up his car. Indeed, Mike Brashears showed up at the scene, corroborating the

Defen dant’s sto ry in part.




                                         -6-
         Howeve r, we cannot reweigh or reevaluate the evidence considered by the

jury.    Cabbage, 571 S.W.2d at 835. Apparently, the jury chose to cred it the

testimony of the Sta te’s witnes ses an d resolve d any co nflicts in its favor. The

State presented a mple evidence that would support the conclusion that the

Defendant was drinking and became intoxicated before he took the wheel of his

car.



         This issue is without m erit. Accordingly, we affirm the judgment of the trial

court.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




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