         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 11, 2001

                 STATE OF TENNESSEE v. SHERON LAMPTON

                  Direct Appeal from the Circuit Court for Madison County
                            No. 99-896    Roger A. Page, Judge



                      No. W2000-01583-CCA-CD - Filed August 23, 2001


The Defendant was convicted of second offense driving under the influence and violation of the open
container law. The trial court sentenced her to eleven months, twenty-nine days incarceration for
the DUI conviction, suspended after service of ninety days, and to thirty days incarceration,
suspended, for violation of the open container law. In this appeal as of right, the Defendant argues
that the evidence presented at trial was insufficient to support her convictions. Having reviewed the
record, we conclude that sufficient evidence was presented to support the jury’s findings of guilt and
therefore affirm the judgment of the trial court.


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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

C. Michael Robbins (on appeal), Memphis, Tennessee; and George Morton Googe and Michael D.
Rasnake (at trial and on appeal), Jackson, Tennessee, for the Appellant, Sheron Lampton.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

         On May 5, 2000, a Madison County jury convicted the Defendant, Sheron Lampton, of
driving under the influence (DUI) and violation of the open container law. At the conclusion of the
trial, the Defendant stipulated that she was a DUI second offender. The trial court conducted a
sentencing hearing on June 13, 2000. At the sentencing hearing, the State and the Defendant
proposed an agreed sentence to the trial court, which the trial court approved. Pursuant to the
agreement, the court sentenced the Defendant to eleven months, twenty-nine days incarceration for
the second offense DUI conviction, suspended upon service of ninety days, after which time the
Defendant was to be placed on Community Corrections. The trial court sentenced the Defendant to
thirty days incarceration, suspended, for the violation of the open container law conviction. The
court ordered that the sentences be served concurrently. The court also fined the Defendant $600
for the DUI conviction and $50 for the violation of the open container law conviction. The
Defendant now appeals as of right, challenging the sufficiency of the evidence used to convict her.
Having reviewed the record, we conclude that sufficient evidence was presented at trial to support
the Defendant’s convictions and thus affirm the judgment of the trial court.

        At trial, Officer C. Wizer of the Jackson Police Department testified that he had been a police
officer for a total of six years. He recalled that on the morning of July 18, 1999, while patrolling the
streets of Jackson, he saw a white Chevrolet Caprice car which he suspected might be in violation
of the window tint law. See Tenn. Code Ann. § 55-9-107. When he pulled the vehicle over, the
Defendant emerged from the driver’s seat holding a glass container. Wizer stated that as she exited
her vehicle, the Defendant poured out the contents of the container. According to Wizer, he asked
the Defendant what was in the glass, and she admitted that the glass contained beer. Wizer stated
that while speaking with the Defendant, he could smell the odor of alcohol about her person. He also
recalled that a passenger was riding with the Defendant at the time of the stop. Wizer testified that
there was an open bottle of whiskey in the car, and the passenger admitted that it belonged to him.

        Wizer testified that he asked the Defendant if she was armed, and she responded that she was
not. He then checked the Defendant for weapons. Wizer maintained that as he patted the Defendant
down, the Defendant began to pull out all her pockets, and she also untucked her shirt. He stated that
at one point during the weapons check, he thought the Defendant “was going to take her shirt off.”
Wizer also noted that the Defendant’s pants were unzipped, and he asked her to zip up her pants.

        Wizer then asked the Defendant to perform field sobriety tests to determine if she was under
the influence of alcohol. He first asked the Defendant to perform the “finger count to four.” He
explained that this test requires a suspect to touch his or her thumb to each of the fingers on the same
hand, counting one through four; the suspect is then to touch his or her thumb to the same fingers
in the opposite direction, counting backwards from four to one. Wizer stated that the Defendant
performed poorly on this test. He recalled that while counting backwards, she inverted two numbers,
thus counting as follows: “One, two, three, four, four, two, three, one.”

         Wizer next asked the Defendant to perform the “one-legged stand.” This test requires a
suspect to stand with hands down by his or her sides, lift one leg off of the ground about four to six
inches, and maintain that position for several seconds. Wizer reported that the Defendant also
performed poorly on this test. He stated that he had to instruct her several times on how to perform
the test, and he testified that the Defendant raised her hands several times to catch her balance during
the test.

        Finally, Wizer asked the Defendant to perform the “ten step heel-to-toe walk in a straight
line.” He stated that the Defendant performed this test, but shortly after the test, he decided that she
was too intoxicated to be driving and therefore took her into custody. Wizer recalled that after


                                                  -2-
arresting the Defendant, he asked her if she would take a breathalyzer test, but the Defendant refused.
Wizer testified that by the time they reached the police department, the Defendant had become
belligerent.

         A video tape was recorded of Wizer’s stop of the Defendant. The tape was played for the
jury at trial. However, portions of the video were inaudible, and the tape began after the Defendant
exited her vehicle and disposed of the contents of her glass.

        The Defendant also testified at trial. She recalled that she was driving her car on the morning
of July 18, 1999 when she saw blue lights behind her. She stated that she pulled over in response,
got out of her car, and approached the police vehicle. She claimed that she was nervous because she
did not know why she had been stopped. The Defendant also explained that she was somewhat
disheveled at the time of the stop because she had just gotten out of bed. She reported that the
passenger in her vehicle had awakened her to ask for a ride to the store.

        The Defendant maintained that she had not been drinking on the morning of July 18, 1999.
She recalled that when she exited her vehicle, she was drinking a glass of juice, which she poured
out onto the ground. She testified that the officer who stopped her asked if the glass contained beer,
and she claimed that she responded, “No, sir.” When asked why she poured out the juice, the
Defendant stated, “Because I really was wondering why I was being pulled over; . . . nine o’clock
in the morning, Sunday morning.” The Defendant further testified that she did not recall seeing a
whiskey bottle in her vehicle that morning. She stated that if there was such a bottle in her car, it
belonged to her passenger.

        The Defendant explained that she pulled out her pockets and untucked her shirt to show
Officer Wizer that she was unarmed. She admitted that she botched two field sobriety tests, the
finger count test and the one-legged stand. She further admitted that she refused to take the
breathalyzer test.

        Anthony Woodson testified that he was friends with the Defendant. He stated that he was
at her house on the morning of July 18, 1999 prior to her arrest. Woodson testified that he did not
see the Defendant consume any alcohol that morning, that he did not smell alcohol about her person,
and that the Defendant’s speech was not slurred. He maintained that he did not notice anything
about the Defendant’s appearance or behavior that morning to indicate that she was intoxicated.

          The Defendant now contests the sufficiency of the evidence presented at trial. When an
accused challenges the sufficiency of the evidence, an appellate court’s standard of review is
whether, after considering 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, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.
App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Dykes, 803 S.W.2d
250, 253 (Tenn. Crim. App. 1990).


                                                 -3-
        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.

        The Defendant was convicted of driving under the influence, which is defined as follows:
                It is unlawful for any person to drive or 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 housing complex, or any other premises which
        is generally frequented by the public at large, while:
                (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.
Tenn. Code Ann. § 55-10-401(a)(1)-(2). The Defendant was also convicted of violation of the open
container law, which provides that “[n]o driver shall consume any alcoholic beverage or beer or
possess an open container of alcoholic beverage or beer while operating a motor vehicle in this
state.” Id. § 55-10-416(a)(1).

        We conclude that ample evidence was presented at trial to support the jury’s verdict in this
case. Officer Wizer testified that when he stopped the Defendant, she was holding a glass container
of liquid which she poured out upon exiting her car. Wizer stated that the Defendant told him that
the liquid was beer, and he recalled that the Defendant smelled of alcohol. He also stated that he saw
an open bottle of whiskey in the Defendant’s car. Wizer further testified that he asked the Defendant
to perform field sobriety tests, and he maintained that she performed poorly on two of the tests. In
addition, the State played a video tape of the Defendant’s stop and subsequent arrest for the jury.
The jury was presented with contradictory testimony by the Defendant and her friend, Anthony
Woodson, and evidently accredited the testimony of Officer Wizer. We may not disturb this finding
of fact on appeal. See Liakas, 286 S.W.2d at 859. We find this issue to be without merit.

       Accordingly, the judgment of the trial court is AFFIRMED.

                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE


                                                  -4-
