         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                      NOVEMBER 1998 SESSION
                                                    January 12, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk

STATE OF TENNESSEE,         )
                            ) C.C.A. No. 01C01-9803-CC-00135
     Appellee,              )
                            ) Rutherford County
V.                          )
                            ) Honorable James K. Clayton, Jr., Judge
                            )
PAMELA JEAN SCUDERI,        ) (Driving Under the Influence)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

Tusca R.S. Alexis              John Knox Walkup
915 Jefferson St.              Attorney General & Reporter
Nashville, TN 37208
                               Daryl J. Brand
                               Senior Counsel
                               Erik W. Daab
                               Legal Assistant
                               Criminal Justice Division
                               425 Fifth Avenue North
                               Nashville, TN 37243-0493

                               William C. Whitesell, Jr.
                               District Attorney General

                               John Price
                               Assistant District Attorney
                               300 Judicial Bldg.
                               Murfreesboro, TN 37130



OPINION FILED: ___________________


REVERSED AND DISMISSED


JOE G. RILEY,
JUDGE
                                    OPINION

         A jury convicted the defendant of driving under the influence of an

intoxicant (DUI), first offense. She was sentenced to eleven months, twenty-nine

days at seventy-five percent, all suspended except forty-eight hours in jail. She

was also fined $350. In this direct appeal, the defendant challenges the

sufficiency of the evidence. Upon our review of the record, we vacate the

conviction.



                                       FACTS



         No verbatim transcript of the evidence was filed with this Court; however,

a Statement of the Evidence was filed. It was approved by the trial judge, the

prosecuting attorney, and defense counsel.



         In November 1995, the defendant, her husband, and their nine-year-old

daughter accompanied Michael Calloway to dinner. During dinner, the

defendant drank three glasses of wine. After dinner, the foursome left the

restaurant in Calloway's two-door car. Calloway was driving, the defendant's

husband was in the front passenger seat, the defendant was behind her

husband, and their child was next to the defendant.



         Upon a phoned-in report, Officer Brad Ballard stopped Calloway. Officer

Ballard ordered Calloway out of the car and ordered the passengers to remain in

the car. Calloway left the car running when he got out. Officer Ballard then

administered field sobriety tests to Calloway and eventually arrested him for DUI

and child endangerment. Officer Keith Sanders was the back-up officer on the

scene.




                                          -2-
        After about fifteen or twenty minutes of waiting in the car, the defendant

told her husband to get out of the car so that she could get out and check on

Calloway. Mr. Scuderi refused to do so because of Officer Ballard's orders. The

defendant then “started coming toward the front of the vehicle by walking

between the front driver seat and the front passenger seat.” Upon seeing her

movement, Officer Sanders “immediately approached the car.” He reached the

car “as the defendant scooted into the driver’s seat” and told the defendant to

step out. He asked her if she had been drinking, and she admitted to drinking

three glasses of wine with dinner. Officer Sanders asked her to perform field

sobriety tests, but she responded that she could not because of crippling

arthritis. Officer Sanders then asked her to recite the alphabet and she

complied. Based on the defendant's belligerent attitude, an odor of alcohol, her

admission to drinking three glasses of wine, and her further admission of having

taken some prescription medication, Officer Sanders arrested the defendant for

DUI. At trial Officer Sanders conceded that he had not seen the defendant's

hand on the gearshift or her hands on the steering wheel, but testified that he

had not known what her intentions were when she climbed into the front seat.

He was afraid that, since the car was still running, she could easily have driven

away.



        The defendant's husband, Carmine Scuderi, testified that his wife

“scooted between his seat and the driver’s seat and attempted to get out of the

car.” She had her left foot on the ground and her right foot still in the car when

Officer Sanders approached the car.



                                     ANALYSIS



        The defendant contends that the evidence is insufficient to prove that she

was in “physical control” of the automobile. A defendant challenging the

sufficiency of the proof has the burden of illustrating to this Court why the

                                         -3-
evidence is insufficient to support the verdict returned by the trier of fact in her

case. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Upon an appeal

challenging the sufficiency of the convicting evidence, we must review the

evidence in the light most favorable to the prosecution in determining whether

“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). We

do not reweigh or re-evaluate the evidence. And, we are required to afford the

state the strongest legitimate view of the proof contained in the record as well as

all reasonable and legitimate inferences which may be drawn therefrom. See

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       In Tennessee, “[i]t 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 under the influence of any intoxicant.” T.C.A. § 55-10-

401(a)(1993) (emphasis added). In construing this statute, our Supreme Court

has concluded that “the Legislature, in making it a crime to be in physical control

of an automobile while under the influence of an intoxicant, intended to enable

the drunken driver to be apprehended before he strikes.'” State v. Lawrence,

849 S.W.2d 761, 765 (Tenn. 1993) (citation omitted). Accordingly, the Court

adopted a broad “totality of the circumstances approach” in assessing whether a

defendant had physical control of an automobile for purposes of the DUI statute.

See id. This test

              allows the trier of fact to take into account all
              circumstances, i.e., the location of the defendant in
              relation to the vehicle, the whereabouts of the ignition
              key, whether the motor was running, the defendant's
              ability, but for his intoxication, to direct the use or
              non-use of the vehicle, or the extent to which the
              vehicle itself is capable of being operated or moved
              under its own power or otherwise.

Id. (emphasis in original).




                                          -4-
        In this case it was undisputed that the two-door car was owned and

operated by Calloway. The defendant was in the back seat with her child. Her

husband testified that she climbed to the front seat in order to exit the car via the

driver’s door. Officer Sanders testified he “immediately” approached the car as

the defendant “started coming toward the driver’s seat” and told her to exit the

car. Officer Sanders conceded she did not have her hand on the steering wheel

or gear shift.



        Viewing the evidence in a light most favorable to the state, the evidence is

insufficient to establish beyond a reaonsable doubt that the defendant was in

physicial control of the automobile. At best, the state’s proof showed that the

defendant came from the back seat, scooted into the driver’s seat and

immediately exited the car. She never touched the gear shift or steering wheel.

Under these facts, the elements of the crime were not established.1



        The conviction is vacated.



                                                    __________________________
                                                    JOE G. RILEY, JUDGE



CONCUR:




(NOT PARTICIPATING)
PAUL G. SUMMERS, JUDGE




_____________________________
L. T. LAFFERTY, SENIOR JUDGE




        1
           This Court is bo und by the Statem ent of the Evidence approved by the tria l court and both
counsel. If there was other incriminating evidence as to defendant’s actions in the automobile, it is not
a part of the Stateme nt of the Evidence.

                                                   -5-
