                                                                                       06/22/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                   Assigned on Briefs May 19, 2020, at Knoxville

                STATE OF TENNESSEE v. JIMMY M. CRUSE

                 Appeal from the Circuit Court for Madison County
                        No. 18-836 Donald H. Allen, Judge
                     ___________________________________

                          No. W2019-01331-CCA-R3-CD
                      ___________________________________


A Madison County jury convicted the defendant, Jimmy M. Cruse, of driving under the
influence (“DUI”), third offense. The trial court imposed a sentence of eleven months
and twenty-nine days in the Madison County Jail. On appeal, the defendant challenges
the sufficiency of the evidence supporting his conviction. Upon our review of the record,
we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.

Gregory D. Gookin, Assistant Public Defender (on appeal) and Bede Anyanwu, Jackson,
Tennessee (at trial), for the appellant, Jimmy M. Cruse.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Eric V. Wood,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                 Factual Background

       On November 18, 2017, at approximately 11:00 p.m., Deputy Dennis King of the
Madison County Sheriff’s Office was initiating a traffic stop on Highway 45 in Jackson.
Before completing the stop, Deputy King, who was in the left lane, was distracted by the
defendant’s vehicle as it traveled past him in the right line. Deputy King observed the
defendant’s vehicle’s brake lights flash two or three times before the vehicle
“fishtail[ed]” and “appeared to strike something.” He noticed “a cloud” of “dust or
smoke” appeared and the back of the vehicle “slightly lifted” off the ground when it came
to a stop. Deputy King discontinued the initial stop and turned his attention to
investigating the defendant’s wreck. The defendant exited his vehicle as Deputy King
was approaching. When Deputy King asked the defendant if he was injured, the
defendant stated he had urinated on himself. Deputy King then noticed the smell of urine
and a wet stain on the front of the defendant’s pants. When he checked the condition of
the vehicle, Deputy King discovered the vehicle had crashed into the guardrail on the
shoulder of the highway, which “crushed in the front end of his vehicle.”

       Deputy King testified he had received training on DUI investigations and had
conducted several such investigations as a deputy. While talking to the defendant, he
noticed the defendant had “watery” and “reddish” eyes and “was talking about stuff other
than what was going on at the time,” which indicated the defendant may have been
intoxicated. He also detected the smell of alcohol coming from the defendant’s vehicle
and observed a whiskey bottle inside the vehicle. Because Deputy King’s shift was
ending, he called the Jackson Police Department (“JPD”) and requested an officer to the
scene to take over the investigation. JPD Officers arrived approximately ten minutes
later.

       JPD Officer Steven Overton testified that Deputy King and two other officers were
at the scene when he arrived at approximately 11:00 p.m. Deputy King told Officer
Overton what he had observed. Officer Overton then spoke to the defendant, who stated
he drove his vehicle off the road because he thought Deputy King was pulling him over
and became scared. Officer Overton noticed the defendant smelled like urine and alcohol
and his pants “were saturated with urine.” He also noticed the defendant had slurred
speech. Based on these observations, Officer Overton administered field sobriety tests.

       Officer Overton conducted the horizontal-gaze nystagmus test and the one-legged
stand test. The horizontal-gaze nystagmus test requires the individual to “stand up
straight with his feet together and his hands down by his side.” The officer then holds a
pen in front of the individual’s face, and the individual is required “to keep his head
straight and follow [the pen]” with his eyes as the officer moves it side to side in front of
the individual’s face. According to Officer Overton, the defendant failed this test by
“turning his head each time the pen moved.” Officer Overton next conducted the one-
legged stand test. He instructed the defendant to stand on one leg while raising the other
leg six inches off the ground, keep his arms straight, and look down at his foot while
counting “one thousand one, one thousand two, and so forth” until instructed to stop.
According to Officer Overton, the defendant failed this test by putting his foot down
several times, and then “[a]t one point [the defendant] even just sat back down on
[Deputy] King’s car.”

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       Based on the failed field sobriety tests as well as the defendant’s “slurred speech,
[and] the smell of alcohol on his person,” Officer Overton concluded the defendant was
under the influence of alcohol and could not safely operate a motor vehicle. Officer
Overton arrested the defendant, and a subsequent search of the defendant’s vehicle
revealed two open alcohol containers in the front center console and one empty alcohol
container in the backseat. Officer Overton identified a photograph showing the open
containers in the front center console as a “Michelob Ultra which is a beer that was open
and also a fifth or pint of bourbon whiskey.” He also identified a photograph depicting
an empty Michelob Ultra can in the backseat.

       Once the defendant was seated in the back of Officer Overton’s patrol vehicle,
Officer Overton read the implied consent form and asked for consent to conduct a blood
test. According to Officer Overton, the defendant would not answer his request and tried
persuading Officer Overton to release him “in exchange for giving up names of drug
dealers, alleged murderers, etcetera.” A dash camera in Officer Overton’s patrol vehicle
recorded the conversation, and the recording was played aloud for the jury.

        The defendant testified on his own behalf. According to the defendant, on
November 18, 2017, he saw Deputy King’s emergency lights, so he began to stop his
vehicle on the shoulder and “[t]he tip of my bumper on that vehicle touched the guardrail
going about five to seven miles [per hour] -- I just needed some rear brake pads is all it
was. There was no wreck at all.” The defendant stated he was scared when Deputy King
approached him because “[Deputy King] told me I had a wreck and I know if a black
person gets pulled [over] having a wreck they didn’t have, they fixing to put something in
my car.” The defendant denied telling Deputy King that he had urinated in his pants and
denied having slurred speech or watery eyes. He also denied being intoxicated.
According to the defendant, he agreed to undergo field sobriety testing but told Officer
Overton he preferred a breathalyzer test because he “had a pin” in his ankle from a prior
surgery. The defendant stated that during the horizontal-gaze nystagmus test, “[Officer
Overton] held up the pen for a second and then I did what he said and then he told me to
stand on one foot and I said that I’ve got a pin in my ankle and he said don’t worry about
it and get on the cuffs.”

        The defendant denied that his vehicle lifted off the ground or that there was a
cloud of dust when he hit the guardrail. To challenge the State’s evidence that the
defendant wrecked into the guardrail, the defense introduced a video depicting a Kia
Sorento, the same make and model of the defendant’s vehicle, being used in a “crash
test” at five miles per hour, which was played for the jury.




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       After reviewing all of the evidence, the jury found the defendant guilty of DUI,
third offense. The trial court imposed a sentence of eleven months and twenty-nine days
in the Madison County Jail. This timely appeal followed.

                                          Analysis

       On appeal, the defendant challenges the sufficiency of the evidence supporting his
conviction for DUI. The defendant generally argues “the jury should have found his
testimony to be more credible than that of [Deputy] King and [Officer] Overton, and that
the State did not prove beyond a reasonable doubt that he was intoxicated.” The State
contends the evidence produced at trial was sufficient to support the defendant’s
conviction, noting questions regarding the credibility of witnesses are determined by the
jury and should not be reevaluated on appeal. We agree with the State.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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); see also
Tenn. R. App. P. 13(e) (“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). 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. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the following rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus, the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere, and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

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convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘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)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

      The defendant was convicted of DUI. Tennessee Code Annotated section 55-10-
401(1) provides:

      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, . . . while under the influence of any intoxicant, . . .
      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.

Tenn. Code Ann. § 55-10-401(1). It is undisputed the defendant had been driving an
automobile on a public highway in the State of Tennessee.

       The State presented evidence that the defendant ran his vehicle off the road and
into a guardrail on the shoulder of the highway. Deputy King testified the defendant had
slurred speech, watery and “reddish” eyes, smelled of alcohol and urine, and admitted he
had urinated in his pants. When questioning the defendant, Deputy King also noticed the
defendant “was talking about stuff other than what was going on at the time.” Officer
Overton testified the defendant smelled of alcohol and urine, and his pants “were
                                           -5-
saturated with urine.” The defendant also failed both field sobriety tests. When Officer
Overton read the defendant the implied consent form requesting a blood test, the
defendant refused to answer the request and offered to provide information as a
confidential informant in exchange for his release. Finally, Officer Overton located an
empty beer can and an open beer can and open bottle of whiskey in the defendant’s
vehicle.

       From these facts, a rational trier of fact could have found the defendant guilty of
DUI. The defendant wrecked his vehicle, smelled of alcohol and urine, had open alcohol
containers in his car, and showed multiple verbal and physical signs of impairment,
including failed field sobriety tests. While the defendant denied wrecking his vehicle,
having slurred speech, being intoxicated, or telling the officers he had urinated on
himself, the jury, as the trier of fact, is entrusted with determining the weight of the
evidence and evaluating the credibility of witnesses, and, based on the verdict, the jury
weighed the testimony of the officers and the defendant and reconciled the evidence in
favor of the State. Campbell, 245 S.W.3d at 335; Dorantes, 331 S.W.3d at 379. This
Court will not reweigh the evidence. Dorantes, 331 S.W.3d at 379. Accordingly, the
evidence was sufficient for a jury to convict the defendant of DUI.

                                       Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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