                                                                                        07/31/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 9, 2020

          STATE OF TENNESSEE v. JONATHAN MONTGOMERY

                Appeal from the Circuit Court for Rutherford County
                         No. F-78136 David M. Bragg, Judge
                     ___________________________________

                           No. M2020-00026-CCA-R3-CD
                       ___________________________________


A Rutherford County jury convicted Defendant, Jonathan Montgomery, of driving under
the influence (“DUI”) per se, DUI with blood alcohol content over .08 percent, DUI,
sixth offense, and driving on a revoked license. The trial court sentenced Defendant to
three years with a thirty percent release eligibility for DUI and to a concurrent sentence
of six months for driving on a revoked license. On appeal, Defendant contends the
evidence presented at trial was insufficient to support his convictions. Following a
thorough review, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Melton, District Public Defender, and Billie I. Zimmerman, Assistant District
Public Defender, Murfreesboro, Tennessee, for the appellant, Jonathan Montgomery.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Brent Pierce,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                     OPINION
                        Factual and Procedural Background

       Officer Charlie Sevier of the Smyrna Police Department (“SPD”) testified that he
was on patrol on the night of March 3, 2017, when he passed a vehicle in a ditch on
South Lowery Street. Officer Sevier noticed that Defendant was “standing right next to
the car [and that he] started to walk away.” Officer Sevier made a U-turn to get a better
view of the vehicle and subsequently turned on his blue lights. After Defendant looked
back to see the lights, he continued to “briskly stumble” away from the officer and the
vehicle.

       Officer Sevier told Defendant to stop, but Defendant walked faster until Officer
Sevier caught up with him. Once stopped, Officer Sevier and Defendant stood in the
Bank of America parking lot. At this time, Defendant looked around and tossed the
vehicle’s keys to his side. Officer Sevier ordered Defendant to lie face down on the
ground, but Defendant lay on his back. Officer Sevier maintained his distance from
Defendant until Defendant rolled over onto his stomach. Officer Sevier then handcuffed
Defendant.

       Defendant told Officer Sevier that he was chasing after “John,” who Defendant
claimed was driving the vehicle. During this conversation, Officer Sevier noticed that
Defendant smelled like alcohol and had slurred speech. Defendant also had cuts on his
forehead and on his ear. Defendant said that he obtained these cuts while shaving.
Defendant then refused to be cleared by a paramedic.

       A backup officer eventually arrived at the scene. Officer Sevier picked up the
keys that Defendant threw, and Defendant later denied throwing them. Defendant then
claimed his own name was “John” and also denied that his friend was driving. Defendant
refused to perform field sobriety tests or to have blood drawn.

       Both officers proceeded to the vehicle in the ditch while Defendant was in Officer
Sevier’s police car. The backup officer put the key in the ignition and was able to start
the vehicle. The officers found four bottles of whiskey inside the vehicle. One bottle
was completely empty, one bottle was three-fourths empty, and two bottles were full.

      Once at the SPD, Officer Sevier discovered that Defendant’s license was revoked
and that the vehicle was registered to Defendant. Officer Sevier obtained a search
warrant to have Defendant’s blood drawn. A nurse at Stonecrest Hospital drew
Defendant’s blood, and Officer Sevier took the blood kit back to the SPD to lock it in the
evidence locker.

       On cross-examination, Officer Sevier stated that Defendant was standing closer to
the passenger’s side of the vehicle than the driver’s side when Officer Sevier first saw
him. There was no indication that anyone previously exited the vehicle, such as any open
car doors. Officer Sevier also acknowledged that he never looked for others in the
vicinity of the vehicle.



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       Special Agent Dawn Swiney, a toxicologist for the Tennessee Bureau of
Investigation Crime Laboratory, discovered .208 grams percent of ethyl alcohol (drinking
alcohol) in Defendant’s blood. Agent Swiney testified that this percentage is more than
two times higher than the legal limit of .08 grams percent. Agent Swiney further testified
that ethyl alcohol causes impairment and a lack of critical judgment and may also cause
an increase in reaction time and difficulty in multitasking.

       On cross-examination, Agent Swiney acknowledged that a person’s weight can
affect how much alcohol a person must consume in order to be impaired. Although
Agent Swiney’s testimony regarded the average individual, she considered any person
with 0.08 grams percent of ethyl alcohol level to be impaired. Agent Swiney agreed that
her testimony did not pertain to whether Defendant was actually driving on the night in
question.

       Following deliberation, the jury found Defendant guilty of DUI per se and DUI
with blood alcohol content over .08 percent. 1 In a bifurcated hearing, the State put forth
evidence regarding Defendant’s driving history, which included several previous DUI
charges. The jury subsequently found Defendant guilty of DUI, sixth offense. The court
then merged the three counts. The trial court sentenced Defendant, as a Range I standard
offender, to three years with a thirty percent release eligibility for DUI and to a
concurrent term of six months for driving on a revoked license. Defendant filed a timely
motion for a new trial, which the trial court denied. This timely appeal follows.

                                              Analysis

       Defendant contends that because no one observed him driving the vehicle, there is
insufficient evidence to support the jury’s verdict. Defendant asserts that no reasonable
juror could have found him guilty of DUI beyond a reasonable doubt. Conversely, the
State argues that the evidence is sufficient to support Defendant’s conviction for DUI.
We agree with the State.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
       1
         Defendant was also convicted of driving on a cancelled, suspended, or revoked license, but this
conviction is not an issue on appeal.


                                                 -3-
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

      As charged in this case,

             It is unlawful for any person to drive or to be in physical control of
      any automobile . . . on any of the public roads and highways of the state . . .
      while:

             (1) Under the influence of any intoxicant, marijuana, controlled
      substance, controlled substance analogue, drug, substance affecting the
      central nervous system, or combination thereof 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 that 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[.]

Tenn. Code Ann. § 55-10-401(1), (2) (2017).

       The court examines the totality of circumstances to determine whether a person is
in physical control of a vehicle while intoxicated. State v. Lawrence, 849 S.W.2d 761,
765 (Tenn. 1993). Therefore, the court should consider all the circumstances in the case,
including the following five factors:

      [1] the location of the defendant in relation to the vehicle, [2] the
      whereabouts of the ignition key, [3] whether the motor was running, [4] the
      defendant’s ability, but for his intoxication, to direct the use or non-use of
      the vehicle, or [5] the extent to which the vehicle itself is capable of being
      operated or moved under its own power or otherwise.

                                           -4-
State v. Butler, 108 S.W.3d 845, 850 (Tenn. 2003) (quoting Lawrence, 849 S.W.2d at
765).
       When viewed in the light most favorable to the State, the evidence in the present
case establishes that Defendant was in physical control of his vehicle while intoxicated.
Not only was Defendant standing next to the vehicle when Officer Sevier initially passed,
Defendant also had physical possession of the vehicle’s keys. Although the vehicle’s
motor was not running, Defendant still had the ability to direct the use of the vehicle but
for Defendant’s intoxicated state. See Butler, 108 S.W.3d at 850-52. In other words,
Defendant could have driven the vehicle away at any time. See Lawrence, 849 S.W.2d at
765. Finally, the fifth factor is analyzed under “a reasonably capable of being rendered
operable” standard. Butler, 108 S.W.3d at 852. According to Officer Sevier’s testimony,
Defendant’s car did not have any physical damage, supporting the notion that
Defendant’s car was still drivable. Additionally, Officer Sevier was able to start the
vehicle’s ignition with the keys Defendant threw. As such, the fifth factor also weighs
against Defendant.

        The totality of the circumstances in the present case, including the five-factor test,
constitutes sufficient evidence to support Defendant’s conviction of DUI. Defendant
smelled like alcohol, slurred his speech, walked unsteadily, and had .208 grams percent
of ethyl alcohol in his blood. In addition, Defendant’s vehicle contained one empty bottle
of whiskey and one three-fourths empty bottle of whiskey. Consequently, “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, 443
U.S. at 319 (emphasis in original). Defendant has failed to prove the evidence was
insufficient to support his conviction. See Bland, 958 S.W.2d at 659. Defendant is not
entitled to relief.

                                        Conclusion

       For the aforementioned reasons, we affirm the judgments of the trial court.



                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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