        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs October 24, 2006

                  STATE OF TENNESSEE v. TARA L. BEFFREY

                    Appeal from the Criminal Court for Hamblen County
                        No. 05CR388      James E. Beckner, Judge



                  No. E2005-02852-CCA-R3-CD - Filed November 16, 2006


The defendant, Tara L. Beffrey, was convicted of driving under the influence (DUI), second offense,
a Class A misdemeanor, for which she received an eleven-month, twenty-nine-day sentence;
violation of the implied consent law, a Class A misdemeanor, for which she received a five-day
consecutive sentence; and driving on a revoked license, a Class B misdemeanor, for which she
received a six-month concurrent sentence. On appeal, the defendant argues that: (1) the convicting
evidence was insufficient to prove DUI and (2) the vehicle stop that led to her arrest was
unconstitutional. We conclude no error exists, and we affirm the judgments of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and JOHN EVERETT WILLIAMS, JJ., joined.

Greg W. Eichelman, District Public Defender (on appeal), and Michael C. Murphy, Morristown,
Tennessee (at trial), for the appellant, Tara L. Beffrey.

Michael E. Moore, Acting Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Kimberly Lane, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        The defendant was stopped while driving her car on Andrew Johnson Highway in Hamblen
County on May 21, 2005. At the trial, Morristown Police Officer Nathan Wolfe testified that he
encountered the defendant around 5:24 a.m. He said that he had been a police officer since February
2004, had received DUI training, and had observed several field sobriety tests. He said he was
driving west on Andrew Johnson Highway, when he saw the defendant in her car directly in front
of him. He said he observed the defendant driving without having her seatbelt fastened, as he could
see the shoulder harness hanging beside the defendant. He said that although the sun had not yet
risen, the road was well-lit and he was using his headlights. He said he followed the defendant for
one to two minutes before stopping her.

        Officer Wolfe testified that he approached the defendant and noticed “a strong odor of
alcohol . . . about her person” and her slurred speech. He said the defendant told him that she drank
two beers. Officer Wolfe then performed two “pre-exit” tests to establish probable cause that the
defendant was driving while intoxicated before he ordered her to get out of her car. The first pre-exit
test was a “finger count,” and for the second, Officer Wolfe instructed the defendant to say the
alphabet, from the letter E to the letter R. Officer Wolfe testified that the defendant failed both tests.
He then ordered her to exit the car to perform two field sobriety tests. He said the defendant was
unable to complete the one-legged stand test successfully. He said he noticed several “cues”
indicating her intoxication: her non-standing foot touched the ground once, she used her arms for
balance, she swayed from side to side, she held on to the rear of her car, and “her counting was way
off.” He said that during the second test, the “nine-step, heel-toe, walk and turn” test, he noticed
three “cues” indicating that the defendant was intoxicated: she “stepped off the line” several times,
she was unable to touch her heel to her toes several times, and she was unable to balance on the turn.
Officer Wolfe said he was required to observe two cues for each test before determining whether
someone had failed the test. After the tests, Officer Wolfe placed the defendant under arrest.

        Officer Wolfe testified that the defendant told him she had taken some medication and that
he offered to give the defendant a blood test to determine her blood alcohol level. He said the
defendant refused to take the blood test. He said he explained the consequences of refusing the
blood test to the defendant, which included that she would have her driver’s license suspended. He
said the defendant refused to sign the implied consent form, which informed her of her rights and
the consequences of refusing an offered breath or blood test. Officer Wolfe testified that he checked
the status of the defendant’s driver’s license and discovered that it had been revoked and that, in his
opinion, the defendant was “too intoxicated to drive.”

         The state played the videotape documenting the field sobriety tests performed on the
defendant. The tape shows Officer Wolfe and another officer standing with the defendant, who was
sitting in her car. The tape begins with Officer Wolfe instructing the defendant on the “finger count”
test. The defendant was instructed to put her fingers together and to count from one to four and then
backwards from four to one. The defendant had difficulty counting backwards from four to one.
Next, Officer Wolfe instructed the defendant to say the alphabet from “E as in Edward to R as in
Robert.” The defendant repeated the phrase “E Edward, R Robert” several times, asked if she had
to say the alphabet backwards, and was unable to say the alphabet as instructed. The defendant
stepped out of the car upon Officer Wolfe’s instruction, and she asked to take off her shoes. The
tape shows the defendant standing on one foot to remove each of her boots. Officer Wolfe instructed
the defendant on the one-legged stand, telling the defendant to stand on one leg while counting from
“one one-thousand” to “thirty one-thousand.” The defendant was unable to keep her balance the
entire time and to count as instructed. During the next test, the nine-step, heel-toe walk, the
defendant can be seen wobbling slightly while walking and wobbling considerably while turning.
The defendant told Officer Wolfe that she had consumed two beers. Officer Wolfe then instructed


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the defendant to follow his finger with her eyes. He placed the defendant under arrest and told her,
“I think you are too intoxicated to drive.”

        On cross-examination, Officer Wolfe testified that the defendant did a good job of taking off
her tall, high-heeled boots while standing on one leg. He said he did not notice the defendant
swerving or weaving much while she was driving. He said that she was in the correct lane of traffic
with her headlights on and that he did not recall her speeding. He said he did not stop the defendant
because of her driving, but only because she was not wearing her seatbelt. He said that although he
could not see her lap belt, it was obvious to him that her seatbelt was not across her shoulder. He
said the defendant readily complied when he signaled her to pull over and when he asked her to
perform the field sobriety tests. Officer Wolfe said he did not turn on his video camera when he first
observed the defendant. He said he did not always record seatbelt violations and nothing about the
defendant’s driving indicated that he should record her while driving. Regarding the nine-step, heel-
toe walk, he said that there was no actual line on which the defendant was supposed to walk and that
by “stepping off the line” he meant the defendant did not walk in a straight line. He said that he was
trained to provide an actual line for DUI suspects to walk on but that it was more important that the
ground on which they were walking was level.

         Officer Wolfe testified that he did not ask the defendant whether she had a restricted license
that allowed her to drive to and from work. He did not recall the defendant’s telling him in jail that
she wanted to take a blood test. He did not know whether he gave the defendant the opportunity to
agree to the blood test after she had been taken to jail, but he said he did ask her at least twice
whether she would take a blood test. He also denied having any knowledge that the defendant and
his wife had worked together and did not get along with one another. He said that he was previously
acquainted with the defendant but that he had never talked to her.

         Morristown Police Officer David Campbell testified that he assisted Officer Wolfe with the
stop involving the defendant and that he was the second officer in the video. He observed Officer
Wolfe’s having the defendant perform field sobriety tests. He said that on the finger count test,
officers were trained to look at whether the subject was able to follow directions and to count
numbers while touching fingers together. He said he remembered that the defendant “messed up on
the count real bad” and that her speech was slurred. He said that the defendant’s attempt to say the
alphabet “was just completely wrong.” He said this indicated to him that the defendant was
intoxicated. He said he did not remember the details of how the defendant performed on the one-
legged stand or the “walk and turn” but did remember thinking that the defendant was intoxicated.
Officer Campbell concluded, based on his training and experience, that the defendant was
intoxicated. He acknowledged that he searched the defendant’s car after her arrest and noted that
no beer cans were in the car. He said he was not at the police department when the defendant got
to jail and did not hear whether the defendant asked to take a blood test.

        Both the state and the defense rested on the testimony of the officers and the videotape. The
jury found the defendant guilty of DUI, violation of the implied consent law, and driving with a
revoked license. The defendant stipulated that this was her second offense DUI.


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                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence presented at trial was insufficient to establish her
conviction for DUI. She argues that the entirely circumstantial evidence failed to exclude all other
reasonable hypotheses except guilt. The state counters that the evidence, including the testimony
of the officers, was sufficient beyond a reasonable doubt to support the conviction.

        Our standard of review when the defendant questions the sufficiency of the evidence 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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence; rather, we presume that the jury 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 regarding
witness credibility, conflicts in testimony, and the weight and value to be given to evidence were
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. Hall,
976 S.W.2d 121, 140 (Tenn. 1998).

        The defendant argues that the state’s entire case was based on circumstantial evidence which
was not sufficient to prove that she was intoxicated. She argues that her driving immediately
preceding the stop and arrest and her coordination in taking off her boots demonstrated that she was
not intoxicated. We conclude that the evidence was sufficient to prove that the defendant was
intoxicated. Officer Wolfe testified that the defendant failed two pre-exit tests and two field sobriety
tests. Both Officer Wolfe and Officer Campbell testified that based on their training and experience,
they determined the defendant to be intoxicated. Officer Wolfe also testified that he smelled alcohol
on the defendant and that she slurred her speech. Moreover, the jury viewed the videotape of the
defendant’s performance on the pre-exit and field sobriety tests. It is true that for an accused to be
convicted of a criminal offense based solely upon circumstantial evidence, the facts and the
circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save
the guilt of the defendant, and that beyond a reasonable doubt.” State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005) (quoting State v. Crawford, 225 Tenn. 478, 470, S.W.2d 610, 612 (1971)).
However, this court has often found that an arresting officer’s testimony alone is sufficient to support
a defendant’s conviction for DUI. See, e.g., State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim. App.
1993). Here, the testimony of the officers, if accredited by the jury, would result in the finding that
the defendant was intoxicated. The jury apparently chose to accredit the testimony of the officers.
We see nothing in the record, including the videotape of the defendant during the traffic stop, that
warrants overruling this finding. We conclude that the evidence was sufficient to convict the
defendant of DUI.




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                                       II. VEHICLE STOP

         The defendant argues that Officer Wolfe’s stop of her vehicle was unconstitutional. Before
the trial, a hearing on the defendant’s motion to suppress was held. The sole witness at the hearing
was Officer Wolfe, who testified that while driving behind the defendant on Andrew Johnson
Highway, he observed the shoulder harness of the defendant’s seatbelt hanging on the side of the
car’s interior. He said that he was approximately one car length behind the defendant, that the road
was well-lit, and that he was using his headlights. He said it was apparent to him that the defendant
was not wearing her seatbelt. He followed the defendant for one to two minutes before he stopped
her for not wearing her seatbelt. He said he did not observe the defendant speeding, greatly weaving
or swerving, or driving erratically.

         The defendant included in the record two videotapes that purport to show the darkness of the
area where the defendant was stopped in the early morning. In one video, a woman driving a car
announced that she is driving east on Andrew Johnson Highway. The video shows another car
passing on the opposite side of the highway, and the interior of the passing car is not visible. In the
second video, a voice announced that it is 5:15 a.m. on May 29. The car from where the camera
records pulled onto Andrew Johnson Highway headed west, following closely behind another car.
The driver of the car in front unbuckled and rebuckled her seatbelt. While it is difficult to see the
seatbelt, one can see the outline of the driver in the first car. The purpose of the videos is to show
that it would be impossible to see whether the defendant was wearing her seatbelt in the darkness
of the early morning.

        The trial court accredited the testimony of Officer Wolfe that he observed the defendant not
wearing her seatbelt. The trial court held that because not wearing a seatbelt is a criminal violation,
the officer was justified in stopping the defendant for that reason. The defendant argues that the
seatbelt violation was a pretext for stopping the defendant and that it was too dark to observe the
defendant’s seatbelt. The state counters that the evidence does not preponderate against the trial
court’s findings and that vehicle stops can be based on minor traffic violations, such as seatbelt
violations. We agree with the state.

         A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “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.” Odom, 928 S.W.2d at 23. The application
of the law to the facts as determined by the trial court is a question of law which we review de novo
on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       The Fourth Amendment to the United States Constitution protects against unreasonable
searches and seizures, and “article 1, section 7 [of the Tennessee Constitution] is identical in intent
and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)
(quoting Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860 (1968)). In order to stop a vehicle


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without a warrant, a law enforcement officer must have “probable cause, or reasonable suspicion
supported by specific and articulable facts, to believe that an offense has been or is about to be
committed.” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (citing State v. England, 19 S.W.3d
762, 765 (Tenn. 2000)). A vehicle stop is constitutional if an officer has probable cause or
reasonable suspicion to believe that a traffic violation has occurred. State v. Vineyard, 958 S.W.3d
730, 734 (Tenn. 1997). In determining whether a vehicle stop was constitutionally justified, we look
not at the subjective motivation of the stopping officer, but at whether there was in fact probable
cause to believe a violation had occurred. See Whren v. United States, 517 U.S. 806, 813, 112 S.
Ct. 1769, 1774 (1996). The federal Sixth Circuit and this court have upheld vehicle stops based on
violations of the state’s seatbelt law. U.S. v. Draper, 22 Fed. Appx. 413 (6th Cir. 2001); State v. Carl
Martin, No. W2002-00066-CCA-R3-CD, Shelby Co. (Tenn. Crim. App. Jan. 2, 2000).

         In this case, the trial court found that Officer Wolfe observed a violation of the state’s
seatbelt law, which requires a driver and passengers to wear safety belts when a vehicle is in forward
motion. See T.C.A. § 55-9-603(a)(1). The trial court accredited Officer Wolfe’s testimony that he
saw that the shoulder harness of the defendant’s seatbelt was not pulled across the defendant. The
record does not preponderate against the trial court’s findings. While one cannot easily see inside
other cars on the highway in the videos submitted by the defendant, we cannot conclude that it was
impossible for Officer Wolfe to see the defendant’s seatbelt. The videos do confirm that Andrew
Johnson Highway, in the area where the defendant was observed and stopped, was relatively well
lit. If we take as true the trial court’s finding that Officer Wolfe observed the defendant’s seatbelt,
then Office Wolfe would have had probable cause to believe that the defendant was in violation of
the seatbelt law. We conclude that Officer Wolfe constitutionally stopped the defendant based on
probable cause that she was violating the seatbelt law. The trial court did not err in denying the
defendant’s motion to suppress.

                                          CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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