        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 6, 2013

                   STATE OF TENNESSEE v. JOSEPH FLOYD

                   Appeal from the Criminal Court for Shelby County
                         No. 10-03845 Lee V. Coffee, Judge


                  No. W2011-01796-CCA-R3-CD - Filed June 14, 2013


The Defendant, Joseph Floyd, was convicted by a Shelby County Criminal Court jury of two
counts of driving under the influence (DUI), Class A misdemeanors, and reckless driving,
a Class B misdemeanor. See T.C.A. § 55-10-401, 55-10-205 (2012). The trial court merged
the DUI convictions. The Defendant was sentenced to concurrent terms of eleven months
and twenty-nine days for the DUI conviction and seven days for the reckless driving
conviction, all suspended but seven days. On appeal, he contends that the evidence is
insufficient to support his convictions. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Terita Hewlett Riley (on appeal) and Paul James Springer, Sr. (at trial), Memphis, Tennessee,
for the appellant, Joseph Floyd.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; and
Amy P. Weirich, District Attorney General; and Susan L. Taylor and Edith J. Sellers,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                           OPINION

        This case relates to a traffic accident involving injuries on December 20, 2009, in
which the Defendant was arrested for driving under the influence and reckless driving. At
the trial, Mark Scales testified that on that day at 6:00 or 7:00 p.m., he drove his Jeep into the
intersection after the light turned green and that his Jeep was hit by a van. He said the van
traveled from the opposite direction and attempted to make a left-hand turn across his lane
of traffic. He said the van did not stop and hit him on the front driver’s side door.
       Mr. Scales testified that “Brian,” a good samaritan, came to his aid. He said that he
asked Brian who was driving the van and that the Defendant, who was standing next to
Brian, turned and walked away. He denied the Defendant’s talking to him but admitted the
Defendant asked Brian if Mr. Scales was okay. He denied hearing the Defendant say
anything else after the accident.

       Mr. Scales testified that the air bag deployed during the accident and that he suffered
a fractured right leg, an injury to his left leg, and a cut above his eye. He was hospitalized
overnight and was unable to work for two or three weeks. He said that after he returned to
work, fluid formed in his leg, preventing his working for another three weeks.

        On cross-examination, Mr. Scales testified that the front driver’s side door of his Jeep
was damaged and that the door was pried open by emergency personnel. He agreed the cut
to his face was caused by the air bag. He said the impact of the accident pushed his legs
under the steering wheel. He said Brian approached the driver’s side door. He did not know
how much time elapsed between Brian’s arriving and the Defendant’s approaching his Jeep.
He denied seeing anyone get out of the van after the accident. He said that he saw the van
three or four days after his release from the hospital and that the front and driver’s side of the
van were damaged.

       Mr. Scales testified that he did not see anyone driving the van. He agreed he saw a
man, who was 6'2" or 6'3" tall and heavyset, standing near the passenger side of the van but
denied seeing his face. He did not recall whether the van’s doors were open.

       On redirect examination, Mr. Scales testified that he noticed the Defendant’s eyes
were red when he approached his Jeep. He said the Defendant was about five to seven feet
away. He denied hearing the heavyset man say anything to the Defendant.

       Brian Hill testified that he was in the turn lane when the accident occurred and that
he saw a head-on collision. He said that the van was turning left at the intersection and that
Mr. Scales’s Jeep was traveling straight through the intersection. He said he left his car and
walked to Mr. Scales’s Jeep because the front end of the Jeep was “crushed.” He said he also
checked on the Defendant, who was in the driver’s seat. He said a “big guy” was in the
passenger seat. He said the passenger was able to get out of the van. He said that the
driver’s side door would not open and that the Defendant got out through the passenger side
door. He said the Defendant approached Mr. Scales’s Jeep to check on Mr. Scales. He said
he heard the Defendant say to the passenger that the passenger was driving. He said that
when he attempted to open the Defendant’s door, he smelled alcohol coming from the
Defendant and the passenger. He said the Defendant and the passenger were “belligerent,”
and he returned to Mr. Scales.

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        Mr. Hill testified that the Defendant did not have any injuries, that the Defendant
walked over to Mr. Scales’s Jeep, and that the Defendant began walking down the sidewalk
away from the accident. He said that he told a police officer that the Defendant was involved
in the accident and that the officer stopped the Defendant. He said that after the Defendant
was returned to the scene, the Defendant might have sat in the passenger seat of the van.

        On cross-examination, Mr. Hill testified that he did not know whether anyone had
called 9-1-1 when he approached Mr. Scales, although he told Mr. Scales that 9-1-1 had been
called. He said someone who also saw the accident approached Mr. Scales, and he knew it
was not the Defendant. He thought the Defendant and the passenger were wearing their seat
belts but did not think the air bags deployed. He denied the Defendant and the passenger
spoke to him. He said the van turned in front of Mr. Scales and agreed it was not a head-on
collision. He agreed the passenger side of the van was damaged and said the damage was
all over the van.

       Mr. Hill testified that the passenger in the Defendant’s van told him and tried to
convince him the passenger was driving, that the passenger bullied him, and that the told the
police. He thought it was possible the Defendant got out the driver’s side door. He admitted
his “adrenalin was pumping” and said the accident occurred two years previously.

        On redirect examination, Mr. Hill testified that the Defendant’s van struck another
vehicle before coming to a stop. He said two older ladies were inside the third car and were
not injured but were “shaky.” He thought the women drove away. On recross-examination,
Mr. Hill stated that although he recalled the firemen prying open one of the car doors, he did
not recall which car. He agreed his preliminary hearing testimony stated that the jaws of life
were used on Mr. Scales’s Jeep. He agreed he did not know what occurred inside the van
before he approached to assist the Defendant and the passenger. He said he told the police
that the Defendant was driving.

        Memphis Police Officer Pierce Hayden testified that he and Officer Farzam responded
to the car accident involving Mr. Scales and the Defendant. He said that he spoke to Mr.
Scales and that Officer Farzam spoke to the Defendant and the passenger. He said Mr.
Scales told him that he was driving through the intersection when he was struck by a van
attempting to make a left-hand turn. He said that he spoke to Mr. Hill and that based on their
conversation, Officer Farzam left to pick up the Defendant, who was about twenty feet away
walking away from the scene.

      Officer Hayden testified that although he did not talk to the Defendant, he noticed that
he was intoxicated. He said he smelled alcohol coming from the Defendant, who was loud
and belligerent. He said the Defendant was arrested after he spoke to the Defendant’s

                                             -3-
passenger and Mr. Hill. He did not recall hearing the Defendant say anything to Officer
Farzam.

       On cross-examination, Officer Hayden testified that Mr. Hill was standing beside Mr.
Scales’s Jeep when he arrived at the scene. He denied knowing the Defendant before the
accident but admitted arresting the passenger, Mr. Sims, for aggravated burglary one month
before the accident. He said Mr. Sims did not admit to driving the van. He said Mr. Hill told
him that the Defendant was driving. He did not recall the Defendant’s denying driving the
van after his arrest. He denied writing the accident report but admitted it showed that Mr.
Sims was not intoxicated. He said he and Officer Farzam discussed Mr. Sims’s being
intoxicated.

       Officer Hayden testified that there were several witnesses at the scene, although he
only spoke to one of them. He said Officer Farzam spoke to the Defendant. On redirect
examination, he denied attempting to incriminate Mr. Sims. He said Officer Farzam wrote
the accident report. On recross-examination, he stated that he did not know the disposition
of Mr. Sims’s aggravated burglary charge and that he never testified in the case.

       Memphis Police Officer Mehdi Farzam testified that he checked on the people in the
van when he and Officer Hayden arrived at the scene. He said the driver’s seat was empty,
but Mr. Sims, a large man, was sitting in the passenger seat. He said Mr. Hill and Mr. Scales
told him that the Defendant drove the van. He said that he was told the Defendant was
walking down the sidewalk toward a gas station and that he picked up the Defendant.

       Officer Farzam testified that the Defendant was intoxicated, was belligerent, and
smelled of alcohol. He said the Defendant denied being involved in the accident. He said
he spoke to Mr. Sims, who owned the van but denied driving it. He acknowledged preparing
the accident report. He said that Mr. Sims was intoxicated and belligerent, and he admitted
making a mistake by not noting in the accident report that Mr. Sims was intoxicated. He
denied hearing the Defendant and Mr. Sims talk. He identified a photograph of the
Defendant as he appeared the night of the accident and said the Defendant did not have any
injuries.

        On cross-examination, Officer Farzam testified that he was not involved in Mr. Sims’s
arrest for aggravated burglary. He agreed Mr. Hill, Mr. Sims, and Mr. Scales identified the
Defendant as the driver of the van. He said he concluded that the Defendant was the driver
based on Mr. Hill’s and Mr. Scales’s statements. He did not know whether the keys were in
the van’s ignition when he arrived at the scene. He denied photographing the Defendant the
night of the accident and requesting crime scene investigators to inspect the scene.



                                             -4-
       Officer Farzam testified that he did not obtain a written statement from Mr. Sims
because he was not capable of giving one. He said Mr. Sims was concerned about getting
his property from the van. He said that when he approached the van, Mr. Sims was wearing
his seat belt and got out to provide his driver’s license. He did not recall testifying at the
preliminary hearing that Mr. Sims approached him. He denied that he and Officer Hayden
discussed Mr. Sims’s aggravated burglary arrest. He denied photographing the scene and did
not recall ever photographing an accident scene.

      Officer Farzam testified that he did not recall testifying that Mr. Sims said that Mr.
Sims drove the van at “one point in time.” He said that although the Defendant was confused
and dazed, he did not know if the Defendant’s behavior was from intoxication or from the
accident. He said, though, the Defendant did not have any injuries.

        A recording of Officer Farzam’s preliminary hearing testimony was played for the jury
but is not included in the record. His testimony showed that Mr. Sims stated that he drove
the van. He denied being asked at the preliminary hearing if Mr. Sims said he was the
passenger and if Mr. Sims ever denied driving the van. He agreed his previous testimony
stated that the Defendant said he was unsure whether he was driving the van. He said the
Defendant was drunk and confused. On redirect examination, he stated that it was possible
he remembered some details during his testimony that he did not remember at the time of the
accident.

       Memphis Paramedic Adam Stafford testified that he treated Joseph Floyd at the scene,
although he could not identify him in the courtroom because of the number of patients he had
treated. He said that Mr. Floyd was walking around when he arrived, that he smelled of
alcohol, and that he had no obvious injuries or complaints. He placed Mr. Floyd in a cervical
collar and placed him on a stretcher, which protocol required. He said he was told the
Defendant was the driver of the van but could not recall if he learned the information from
the Defendant or the police. He said that there was mild to moderate damage to the front and
passenger side of the van and that the air bags deployed.

       On cross-examination, Mr. Stafford testified that protocol required his putting Mr.
Floyd in a cervical collar because it was possible Mr. Floyd suffered trauma that he could not
diagnose at the scene. On redirect examination, he agreed that intoxication might explain
Mr. Floyd’s confusion and said that Mr. Floyd’s vital signs were all within normal limits and
that he had no obvious injuries.

      Memphis Police Officer Cornell McKinnie testified that when he arrived at the scene,
the ambulance was ready to take the Defendant to the hospital and that he followed the
ambulance. He said that at the hospital, he heard the Defendant say, “I shouldn’t have been

                                             -5-
driving,” and that the Defendant did not know he was within hearing distance. He said that
after the Defendant was released, the Defendant was taken to another location to perform
field sobriety tests, which were administered by another officer. He said the Defendant was
uncooperative and attempted to talk instead of perform the tests. Although he did not recall
much about the Defendant’s performance on the tests, he recalled that the Defendant did not
perform the walk-and-turn test correctly.

        Officer McKinnie testified that the Defendant did not complain about suffering
injuries from the accident. He did not recall the length of time he and the Defendant were
at the hospital but said it was more than one hour. He said that although he did not see any
visible injuries, the Defendant smelled of alcohol. He concluded that the Defendant was
under the influence of an intoxicant that impaired his ability to drive. He said that although
the Defendant declined to take a breathalyzer test, the Defendant’s blood was taken as
required by law because the accident involved injuries to Mr. Scales.

       On cross-examination, Officer McKinnie testified that he arrived at the scene thirty
minutes after the accident. He denied taking the Defendant to the hospital in his police car
and seeing the medical staff examine the Defendant’s head. He denied asking the Defendant
questions but said the Defendant was talkative. He agreed the arrest ticket did not include
the Defendant’s stating he was driving the van. He said that although Officer Hayden
prepared the arrest ticket, he did not know why Officer McKinnie failed to mention the
Defendant’s statement at the hospital. On redirect examination, he stated that the arrest ticket
was already prepared when he reviewed it and that another officer signed his name.

         Memphis Police Officer Bobby Alston testified that he administered the Defendant’s
field sobriety tests. He said the location where the Defendant performed the tests was well
lit, flat, and had lines on the ground. He denied the Defendant complained about injuries.
He said the Defendant performed the horizontal gaze nystagmus test and the walk-and-turn
test. He requested the Defendant perform the one-leg stand test, but the Defendant said he
was unable to perform it because of a previous injury. He said the Defendant also
complained of flat feet, which prevented his performing the test. He did not recall the
Defendant’s mentioning his head.

        Officer Alston testified that he smelled a strong odor of alcohol coming from the
Defendant, that his eyes were watery, and that he had slurred and incoherent speech. He said
the Defendant had difficulty standing and answering simple questions. He said the
Defendant was argumentative, confused, inattentive, and talkative. He said that during the
walk-and-turn test, the Defendant lost his balance, stopped while walking, failed to touch
heel to toe throughout the test, stepped off the line, used his arms for balance, lost his balance
during the turn, turned to the right when he should have turned to the left, and took too many

                                               -6-
steps. He concluded that the Defendant failed the walk-and-turn test. He said that during
the one-leg stand test, the Defendant swayed and used his arms for balance. He concluded
that the Defendant was under the influence of alcohol or drugs. He said he observed the
Defendant at 8:00 p.m., about one and one-half hours after the accident. He said that after
the Defendant was arrested and taken to the police station, a blood sample was taken.

        On cross-examination, Officer Alston testified that he knew the Defendant was taken
to the hospital for treatment, that the Defendant attempted to tell him that he was a disabled
veteran with thirty percent disability, and that he disregarded the Defendant’s statement. He
said, though, that the Defendant did not claim an inability to perform the field sobriety tests.
He agreed the Defendant asked multiple times where the driver of the car was. He said he
did not know what happened at the scene.

        Officer Alston testified that he read the implied consent form to the Defendant,
although the Defendant was confused and unable to answer simple questions. He said he
only asked the Defendant whether he would consent to the breathalyzer test because the law
required a blood test with Mr. Scales being injured in the accident. He said he mistakenly
noted on the implied consent form that the Defendant refused a blood test. He said that
although the Defendant did not verbalize his refusal to take the breathalyzer, the Defendant
shook his head, which Officer Alston interpreted as a refusal. He agreed that the Defendant
later said he would agree to take the test if Officer Alston had witnesses, but the police did
not provide witnesses. On redirect examination, Officer Alston stated that the law did not
allow him to forgo reading the implied consent form simply because a driver was too drunk
to understand the form. He agreed he was unsure whether he asked the Defendant to submit
to a blood test.

       Upon this evidence, the jury convicted the Defendant of two counts of DUI and
reckless driving. The trial court merged the DUI convictions and sentenced him to
concurrent terms of eleven months and twenty-nine days for the DUI conviction and seven
days for the reckless driving conviction, all suspended but seven days. The court found that
the Defendant was offered a breathalyzer test and that the Defendant refused to submit to the
test. The court found that the Defendant violated the implied consent law and revoked his
driver’s license for one year. This appeal followed.

        The Defendant contends that the evidence is insufficient to support his convictions
for DUI and reckless driving. He argues that the evidence failed to show that he was driving
the van at the time of the accident or that he was driving the van while under the influence
of an intoxicant. The State responds that the evidence is sufficient to support his convictions.
We agree with the State.



                                              -7-
       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 (1979). We do not reweigh the
evidence but presume that the trier of fact 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). Questions about witness credibility are resolved by the jury. See State v.
Bland, 958 S .W.2d 651, 659 (Tenn. 1997).

      “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). “The identity of the
perpetrator is an essential element of any crime.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). Identity may be
established with circumstantial evidence, and the “jury decides the weight to be given to
circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence. . . .’” Id.
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)).

       Relevant to this appeal,

       [i]t is unlawful for any person to drive or to be in physical control of any
       automobile . . . on any of the public roads and highways on the state, or on any
       streets or alleys, . . . while:

       (1) Under the influence of any intoxicant, marijuana, controlled substance,
       controlled substance analogue, drug, substance affecting the central nervous
       systems or combination therefore that impairs the driver’s ability to safely
       operate a motor vehicle by depriving the driver of the clearness of mind and
       control of oneself which the driver would otherwise possess; or

       (2) The alcohol concentration in the person’s blood or breath is eight-
       hundredths of one percent (0.08%) or more.



                                             -8-
T.C.A. § 55-10-401 (2012). Reckless driving is committed when “any person who drives any
vehicle in willful or wanton disregard for the safety of persons or property[.]” Id. § 55-10-
205 (2012). Willful and wanton disregard requires “[a] heedless and reckless disregard for
another’s rights, with the consciousness that the act . . . may result in injury to another.”
Burgess v. State, 369 S.W.2d 731, 733 (1963).

        In the light most favorable to the State, the record shows that Mark Scales drove his
Jeep into an intersection and was hit by a van traveling from the opposite direction that
attempted to make a left-hand turn across Mr. Scales’s lane of traffic. Mr. Hill approached
the van and saw the Defendant in the driver’s seat and Mr. Sims in the passenger seat. Mr.
Hill attempted to open the driver’s door but was unable to do so. The Defendant and Mr.
Sims both got out through the passenger door. Mr. Hill smelled alcohol coming from the
Defendant, who was belligerent. Mr. Hill testified that the Defendant approached Mr.
Scales’s Jeep, that Mr. Scales asked who was driving the van, and that the Defendant began
walking away from the scene.

        Officer Farzam said that the Defendant was belligerent and smelled of alcohol and
that he concluded the Defendant was intoxicated. Officers Hayden and McKinnie also said
the Defendant smelled of alcohol and concluded that he was intoxicated. Paramedic Adam
Stafford testified that Mr. Floyd was walking around when he arrived at the scene, that he
smelled of alcohol, and that he had no obvious injuries or complaints. Mr. Stafford followed
standard treatment protocol and said that Mr. Floyd’s vital signs were all within normal
limits. Officers McKinnie and Alston testified that the Defendant did not complain about
suffering injuries from the accident.

        At the hospital, Officer McKinnie overheard the Defendant state that he should not
have been driving the van. During the field sobriety tests, the Defendant was uncooperative
and attempted to talk to Officer Alston rather than perform the tests. Officer Alston smelled
a strong odor of alcohol coming from the Defendant. The Defendant had watery eyes,
slurred and incoherent speech, and had difficulty standing and answering simple questions.
The Defendant was argumentative, confused, inattentive, and talkative. Officer Alston
testified that during the walk-and-turn test, the Defendant lost his balance, stopped while
walking, failed to touch heel to toe throughout the test, stepped off the line, used his arms for
balance, lost his balance during the turn, turned to the right when he should have turned to
the left, and took too many steps. Officer Alston concluded that the Defendant failed the
walk-and-turn test. He said that during the one-leg stand test, the Defendant swayed and
used his arms for balance. He concluded that the Defendant was under the influence of
alcohol or drugs. Officer Alston observed the Defendant about one and one-half hours after
the accident. We conclude that the evidence sufficiently established that the Defendant was
driving the van at the time of the accident and that he was driving while under the influence

                                               -9-
of alcohol or an intoxicant. We also conclude that the evidence sufficiently established that
the Defendant committed the offense of reckless driving. The Defendant is not entitled to
relief.

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.




                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -10-
