         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 4, 2003

        STATE OF TENNESSEE v. JOE CHARLES DEGRAFENREID

                   Direct Appeal from the Circuit Court for Tipton County
                            No. 4202    Joseph H. Walker, Judge



                     No. W2002-00681-CCA-R3-CD - Filed April 23, 2003


The Defendant, Joe Charles Degrafenreid, was convicted by a jury of driving under the influence
(DUI) as a second offender. In this direct appeal, the Defendant argues that the evidence is
insufficient to support his conviction for DUI and that the trial court erred by denying his motion to
suppress. Finding no error, we affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Michael W. Whitaker, Covington, Tennessee, for the appellant, Joe Charles Degrafenreid.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Walt Freedland, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION


         On the evening of September 4, 2000, Deputy John Cochran of the Tipton County Sheriff’s
Department was on patrol in a marked car. Deputy Cochran noticed a blue pickup in front of him
on Highway 59. Deputy Cochran testified that the truck “was swerving back and forth across the
lane.” The truck then “veer[ed] off the road into the gravel and then came back on the road and then
made [a] left turn on to Mosley.” When he observed the vehicle leave the road, Deputy Cochran
decided to initiate a traffic stop. He then activated his emergency lights. The driver of the pickup
continued until he reached Mosley Avenue, where he turned left. Deputy Cochran followed the truck
until it turned into the first driveway on the left side of Mosley Avenue.

       When the blue truck stopped in the driveway on Mosley Avenue, Deputy Cochran got out
of his patrol car and approached the vehicle. He recognized the driver of the pickup as the
Defendant, whom he had known prior to this incident. Deputy Cochran testified that as he
approached the truck, he noticed the odor of alcohol. When the Defendant got out of the truck,
Deputy Cochran smelled alcohol on his person. The deputy testified that the Defendant’s speech was
slurred, and he used the truck for support as he stood. Therefore, Deputy Cochran requested the
Defendant to perform three field sobriety tests: the one-legged stand test, the finger-to-nose test, and
the horizontal gaze nystagmus test.1 Deputy Cochran testified that, with respect to the one-legged
stand, the Defendant “couldn’t even pick [his foot] up hardly.” Therefore, the Defendant was unable
to stand on one leg and maintain his balance. With respect to the finger-to-nose test, the Defendant
failed to follow the deputy’s instructions, and he was unable to touch his nose. In addition, Deputy
Cochran testified that, throughout his performance of the field sobriety tests, the Defendant used his
truck door for balance. Based on the Defendant’s driving, the odor of alcohol, and his inability to
properly perform the field sobriety tests, Deputy Cochran determined that the Defendant was under
the influence of an intoxicating beverage. He thus decided to arrest the Defendant for DUI.

        When Deputy Cochran arrived at the Tipton County jail with the Defendant, he requested the
Defendant to take a breathalyzer test for the purpose of determining the alcohol and drug content of
his blood. The Defendant refused to submit to the test, and he refused to sign the implied consent
form.

         The Defendant first argues that the evidence presented at trial is insufficient to support his
conviction for DUI. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings 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.” Evidence is sufficient
if, after reviewing 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. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition,
because conviction by a trier of fact destroys the presumption of innocence and imposes a
presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs,
995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. 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, not the appellate



        1
            Deputy Cochran ad mitted at trial that he was no t certified to administer the horizo ntal gaze nystagm us test.

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courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

       Our criminal code provides, in pertinent part, that

       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…while [u]nder the influence of any intoxicant . . . .

Tennessee Code Annotated § 55-10-401(a)(1). Deputy Cochran testified that he observed the
Defendant’s vehicle on Highway 59, and it was weaving within the lane. At one point, the
Defendant’s pickup went off the road. Upon initiating a traffic stop, the deputy smelled alcohol
about the Defendant and his truck. When the Defendant spoke, his speech was slurred. The
Defendant was unable to perform either the one-legged stand test or the finger-to-nose test, and while
Deputy Cochran was administering the tests, the Defendant used the door of his truck to maintain
his balance. In the officer’s opinion, the Defendant was under the influence of an intoxicant This
evidence entitled the jury to find beyond a reasonable doubt that the Defendant committed the crime
of DUI. This issue is without merit.

        The Defendant also argues that the trial court erred by denying his motion to suppress. He
asserts that any evidence recovered as a result of Deputy Cochran’s investigation should be
suppressed because the deputy lacked reasonable suspicion to perform a traffic stop.

        Our supreme court has stated the standard of review of a trial court’s rulings on suppression
issues as follows:

                Questions of credibility of the witnesses, the weight and value of the
       evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
       judge as the trier of fact. The party prevailing in the trial court is entitled to the
       strongest legitimate view of the evidence adduced at the suppression hearing as well
       as all reasonable and legitimate inferences that may be drawn from that evidence. So
       long as the greater weight of the evidence supports the trial court’s findings, those
       findings shall be upheld. In other words, a trial court’s findings of fact in a
       suppression hearing will be upheld unless the evidence preponderates otherwise. We
       also note that this standard review is consistent with Tenn. R. App. P. 13(d), which
       provides that in civil cases, findings of fact by a trial court are presumed correct
       “unless the preponderance of the evidence is otherwise.” Hereafter, the proper
       standard to be applied in reviewing suppression issues is the “preponderance of the
       evidence” standard. The application of the law to the facts found by the trial court,
       however, is a question of law which this Court reviews de novo.

State v. Yeargan, 958 S.W. 2d 626, 628-29 (Tenn. 1997) (citations omitted).



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        We must first determine whether the detention of the Defendant by Deputy Cochran
amounted to a seizure. If so, we must then determine whether Deputy Cochran possessed an
articulable, reasonable suspicion for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889, (1968), and its progeny. In Terry, the Supreme Court stated that not every
encounter between a policeman and a citizen is a seizure. 392 U.S. at 19 n.16. “Only when the
officer, by means of physical force or show of authority, has in some way restrained the liberty of
a citizen may we conclude that a ‘seizure’ has occurred.” Id. In United States v. Mendenhall, 446
U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497, (1980), the Supreme Court stated, “a person has been
‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.”
446 U.S. at 554.

        In this case, Deputy Cochran observed the Defendant’s truck weaving within its lane and
briefly leave the pavement. The deputy activated his blue lights and followed the Defendant onto
Mosley Avenue until the Defendant pulled into a driveway and got out of the truck. At that point,
the deputy began his investigation, which included the administration of field sobriety tests. We
conclude that the stop of the Defendant’s vehicle was a seizure under both the United States and
Tennessee Constitutions.

         Next, we must determine whether Deputy Cochran possessed an articulable, reasonable
suspicion for an investigatory stop under Terry v. Ohio. Police may constitutionally initiate an
investigatory stop of an automobile if they have reasonable suspicion, supported by specific and
articulable facts, that the occupant of the vehicle has either committed a criminal offense or is about
to commit a criminal offense. See State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). When
evaluating whether a police officer’s reasonable suspicion is supported by specific and articulable
facts, a court must consider the totality of the circumstances. See State v. Watkins, 827 S.W.2d 293,
294 (Tenn. 1992).

        Deputy Cochran witnessed the Defendant’s vehicle weave back and forth across the lane,
touch the center line, and go off the road before he initiated an investigatory stop. This Court has
considered other cases in which a defendant’s weaving in his or her lane of traffic has been one of
the factors considered in assessing whether reasonable suspicion existed. See, e.g., State v. Floyd
Lee Williamson, No. 02C01-9803-CC-00085, 1999 WL 177569, at *1 (Tenn. Crim. App., Jackson,
April 1, 1999); State v. Stuart Allen Jenkins, No. 01C01-9712-CR-00590, 1998 WL 917806, at *3
(Tenn. Crim. App., Nashville, Dec. 21, 1998). Furthermore, our supreme court has addressed the
issue. In State v. Binette, 33 S.W.3d 215 (Tenn. 2000), a police officer stopped the defendant after
observing him weaving within his lane of travel. The court stated that the key to finding reasonable
suspicion is not “[t]he number of times that a vehicle touches the center line or drifts within a lane….
Rather…a court must consider the totality of the circumstances in determining whether reasonable
suspicion was present at the time a stop was initiated.” Id. at 219. The court observed that allowing
a finding of reasonable suspicion based upon only minor imperfections in driving would create a
“stop at will” standard that would violate the protections of the Fourth Amendment. Id. In reversing
the defendant’s conviction, the court noted that the defendant’s movement within his lane “was not


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pronounced, and therefore did not give rise to reasonable suspicion that he was under the influence
of an intoxicant.” Id. at 220. Finally, in considering whether driving on the white line and changing
lanes without signaling supported a finding of reasonable suspicion, this Court contrasted prior
decisions in which there had been evidence of “erratic driving or weaving while driving” and held
that no finding of reasonable suspicion could be made absent evidence that the defendant “was
driving erratically, weaving, or otherwise causing a hazard to other vehicles.” State v. Smith, 21
S.W.3d 251, 258 (Tenn. Crim. App. 1999).

         In the present case, Deputy Cochran testified that he observed the Defendant’s vehicle
weaving within its lane of travel on Highway 59. In addition, the deputy stated that, at one point,
the Defendant’s pickup went off the road. The trial judge found the officer to be credible. It is our
opinion that the deputy’s testimony describes the type of pronounced, erratic driving that may form
the basis for reasonable suspicion to justify a traffic stop. See Binette, 33 S.W.3d at 220. Therefore,
the trial court did not err by denying the Defendant’s motion to suppress.

       The judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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