        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 15, 2014

                  STATE OF TENNESSEE v. JAMES M. SMITH

                 Appeal from the Circuit Court for Rutherford County
                        No. F68084     David M. Bragg, Judge




               No. M2013-00733-CCA-R3-CD - Filed February 25, 2014




A Rutherford County jury convicted the Defendant, James M. Smith, of driving under the
influence (“DUI”), driving on a suspended, cancelled or revoked license, two counts of
leaving the scene of an accident, and reckless endangerment. The trial court Defendant
stipulated that he had been convicted of DUI on at least three previous occasions, and the
trial court sentenced him as a Range III, persistent offender, to six years in confinement
followed by four years on probation. On appeal, the Defendant contends that: (1) the trial
court erred when it denied his pretrial motion to continue his case; (2) the prosecutor made
improper comments during opening and closing arguments; (3) a distraction during the jury
deliberation likely caused a hurried and potentially incorrect verdict; and (4) the evidence is
insufficient to sustain his convictions. After a thorough review of the record and applicable
authorities, we conclude no error exists in the judgment of the trial court. The trial court’s
judgments are, therefore, affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
PJ., and T HOMAS T. W OODALL, J., joined.

Brock East, Murfreesboro, Tennessee, for the appellant, James M. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; William Whitesell, District Attorney General; Jennings Jones and Matthew
Westmoreland, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
                                          I. Facts
      This case arises from a traffic accident in which the Defendant was involved on
November 9, 2011. In relation to this accident, a Rutherford County grand jury indicted the
Defendant for DUI, 9th offense.

                                   A. Motion to Continue

        Before commencement of the trial but after a jury had been selected, the Defendant
filed a motion to continue his case. The Defendant’s attorney asserted that his motion was
based upon the fact that on October 2, 2012, a week before trial, the State provided to the
Defendant a video recording of the Defendant’s arrest. The Defendant’s counsel said that
he and his client had looked over the video and, although they did not “necessarily object to
its admissibility,” they wanted the opportunity to further investigate the circumstances of the
arrest based on their viewing of the video. As further support for the motion to continue,
defense counsel stated that he had subpoenaed a witness, Steve Lance, but that Lance had not
been located. Defense counsel told the court that Lance had been incarcerated for much of
the time that the case was pending and that he had been released on October 1, 2012. The
Defendant had informed defense counsel that he believed that he could now locate Lance.


        The State informed the trial court that it was ready to proceed. It noted that the video
had been in defense counsel’s possession for more than a week. The State further noted that
the jury had been sworn and that the only recourse was for the trial court to declare a mistrial.

       The trial court found:

       [The Defendant] was indicted in this case in June. A discussion date was held,
       at which time the Court was advised that Counsel was in possession of
       discovery and the State’s offer. At a later date on the plea date, it was
       announced that [the Defendant] considering, and after discussion with
       Counsel, was prepared to go forward and set the case for trial, at which time
       this trial date was set.

              We have currently placed the jury under oath. Jeopardy is attached.
       The Court was not made aware of any motions filed to continue the case until
       such time as after the jury had been sworn.

               The Court would deny the motion based on the finding that, one, it’s not
       timely; two, Defense has not put on any proof that the recording could be
       digitally enhanced, or that there’s anything about the video that isn’t displayed

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       accurately on the video other than the Defendant would like to have the
       opportunity to go out and visit the scene and measure some things. Which
       certainly he’s had the opportunity to do since such time as he’s had the
       opportunity to watch the video. It’s my understanding [the Defendant] is on
       bond. And, so, he’s had since whenever he watched the video until today to
       go out and look at the scene and measure things and review it based on the
       content of what was on the video. And the Court would deny that motion . .
       ..

              Further, as to the availability of the witness, again, the Court has not
       been made aware of that until such time as after the jury has been placed under
       oath. However, there’s been no testimony or proof offered that – other than
       an assertion that [the Defendant] believes he might be able to find this person.
       He certainly had time to keep up with and try to find this person prior to today
       and has not yet done that. And, so, the Court would deny that motion as well.


                                           B. Trial

        At the Defendant’s trial, the parties presented the following evidence: Paul Hulme
testified that on November 9, 2011, he was stopped in his car at a red light at the intersection
of Murfreesboro Road and Florence Road waiting for the light to turn green. Hulme said that
the Defendant was driving a vehicle that hit the back end of his car while he was stopped.
Hulme did not hear screeching brakes or tires on the road before the impact.

        After the impact, the Defendant approached Hulme’s window and apologized. He
said, “I’m sorry I hit you, I couldn’t stop.” The Defendant then asked Hulme if he had been
drinking, and Hulme replied, “no.” The Defendant made no reference to someone else
driving. Hulme said that he was taken from the scene to the hospital for treatment.

        During cross-examination, Hulme said that the evening of the incident he was driving
a full-sized, yellow van. He said that the van had a metal divider that prevented him from
seeing out of his rearview mirror. Hulme said that, after the impact, he did not see the
Defendant exit the vehicle but that the Defendant approached him on the driver’s side of the
van. He conceded that he would not have seen if there were multiple people exiting the
Defendant’s vehicle. Hulme said that it was dark at the time of the incident. Hulme said that
there was “no chance” that the Defendant said “I’m sorry we hit you.”

       Hulme said that, when the Defendant apologized, Hulme told him that it was okay and
that he was not hurt badly. Hulme said the Defendant then asked him if he had been

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drinking, to which Hulme responded “no.” A nurse then approached and asked Hulme if he
was okay, if his neck or chest hurt, and then informed him an ambulance was en route to the
scene. Hulme said that he did not speak with officers at the scene because they arrived after
the ambulance.

        James Wyatt, a Sergeant with the Murfreesboro Police Department, testified that he
responded to a car accident involving an allegedly intoxicated driver. When he arrived at the
scene, he learned that one of the drivers had left the scene of the accident, and the sergeant
was directed toward the Defendant. Sergeant Wyatt saw the Defendant in a red and gray
shirt across the street. The sergeant started to approach the Defendant, and the Defendant
began walking away from him. The Defendant walked up the hill, got on the railroad tracks,
and walked thirty to forty yards down the railroad tracks. The Defendant then walked down
an embankment on the back side of an establishment called “City Limit Liquor.” The
Defendant went around toward the front of the store. Sergeant Wyatt asked the Defendant
to stop, but he continued walking. As the Defendant was walking around the building,
Sergeant Wyatt again asked him to stop. The sergeant caught up and made contact with the
Defendant at the front door of the liquor store.

        Sergeant Wyatt testified that, when he made contact with the Defendant, he asked the
Defendant what he was doing. The Defendant responded that he was “going to get another
drink before [the officer] took him to jail.” The Sergeant obtained the Defendant’s
identification and took him back to the scene of the accident. Sergeant Wyatt informed the
Defendant that another officer was coming to conduct field sobriety tasks, and the Defendant
responded that he was not going to perform any field sobriety tasks and that “it wasn’t his
first rodeo.”

        During cross-examination, Sergeant Wyatt testified that eight minutes transpired
between the time that he received the call about the accident and when he arrived at the
accident scene. He agreed that “some things” about which he was unaware could have
happened at the accident scene before he got there. The sergeant said that the truck involved
in the accident, which was owned by the Defendant, was not moved from the accident scene.
The sergeant conceded that the Defendant was not running and that he did not fall down as
he was walking. Sergeant Wyatt agreed that the Defendant did not attempt to flee when he
approached him and did not resist speaking with the sergeant.

        Officer Brandon Brown, with the Murfreesboro Police Department, testified that he
responded to a call regarding this accident. He made a diagram of the accident scene and
created a “crash report.” The accident involved four cars, and one of the drivers of the cars
left the accident scene. Two other drivers were transported to the emergency room. Officer



                                             -4-
Brown testified that the “box truck” involved in the accident, and which was the cause of the
accident, was registered to the Defendant.

        During cross-examination, Officer Brown testified that he did not speak with the
Defendant during his investigation of the accident scene. Officer Brown said that he noted
on his report that the Defendant’s truck had “more than $400” worth of damage. He testified
that the damage was to the front of the Defendant’s truck. He conceded that there could have
been damage to the rear of the truck that he did not notice.

        John Harrison, a Special Agent Forensic Scientist with the Tennessee Bureau of
Investigation (“TBI”), testified as an expert in forensic toxicology. He testified that he tested
the sample of the Defendant’s blood. The ethyl alcohol level was 0.23 gram percent. Agent
Harrison testified that, in his opinion, a person was “impaired” when his or her blood alcohol
level reached “the .08 level.” The Defendant’s blood alcohol level, he noted, was three times
this amount.

        For the Defendant, James Shannon Hodge testified that around the time of this
accident he was living with a woman named Ann, her son Jeffery, and a man named “Steve
Lance.” Mr. Lance, he said, was friends with and worked with the Defendant. Mr. Hodge
testified that Mr. Lance drove the Defendant’s truck and, because the Defendant did not have
a valid license, the Defendant paid Mr. Lance to drive him in his truck. Mr. Hodge testified
that he not seen Mr. Lance since the day of the accident. He said Mr. Lance left without
paying the money he owed Mr. Hodge for lodging, and he left many of his belongings.

       During cross-examination, Mr. Hodge testified that he never notified authorities that
they had wrongly arrested the Defendant and that Mr. Lance was driving the Defendant’s
truck. He conceded that he and the Defendant were friends and that he did not want the
Defendant to go to jail.

        During redirect examination, Mr. Hodge testified that he was not present at the
accident scene and cannot be sure who was driving. He, however, knew that Mr. Lance had
left that morning driving the Defendant’s truck.

      During further cross-examination, Mr. Hodge agreed he had been previously
convicted of burglary and felony possession of a Schedule II substance.

       Tom Anderson testified he had known the Defendant for between fifteen and eighteen
years. Mr. Anderson, who worked on trucks for a living, was familiar with the Defendant’s
large work truck. Mr. Anderson said that the Defendant’s truck was towed to his place of
business, after which Mr. Anderson salvaged the parts from it. Before doing so, he inspected

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the truck for damage, and he recalled that there was damage to the front end, the windshield,
and the back cab. During cross-examination, Mr. Anderson testified that he had worked on
the truck “a couple of months” before the accident, and he therefore did not know when the
damage to the truck that he had noted was incurred.

       Based upon this evidence, the jury convicted the Defendant of Driving Under the
Influence (“DUI”). The parties had previously stipulated that the Defendant had been
convicted on at least three previous occasions of DUI. The trial court sentenced the
Defendant as a Range III, persistent offender, to six years in confinement followed by four
years on probation.

                                          II. Analysis

        On appeal, the Defendant contends that: (1) the trial court erred when it denied his
pretrial motion to continue his case; (2) the prosecutor committed prosecutorial misconduct
during argument; (3) a distraction during the jury deliberation likely caused a hurried and
potentially incorrect verdict; and (4) the evidence is insufficient to sustain his conviction.

                                     A. Pretrial Motion

        The Defendant contends that the trial court erred when it denied his motion to
continue the case to “review . . . the specific locations and persons located at the accident
site.” In support of his contention, the Defendant notes that eight days before trial the State
had disclosed the videotape recording of the Defendant’s arrest, which did not give him
adequate time to investigate the case. The State counters that the Defendant has failed to
show that the trial court abused its discretion when it denied his motion for a continuance,
rendering the issue without merit. We agree with the State.

         The decision to grant a motion for a continuance is left to the trial court’s discretion,
and a denial of the requested continuance will not be overturned on appeal absent a clear
showing of an abuse of that discretion. State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim.
App. 1999) (citing State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State, 503
S.W.2d 226, 230 (Tenn. Crim. App. 1973)). We will reverse the denial of a continuance only
if the trial court abused its discretion and the defendant was prejudiced by the denial. State
v. Thomas, 158 S.W.3d 361, 392 (Tenn. 2005). “An abuse of discretion is demonstrated by
showing that the failure to grant a continuance denied defendant a fair trial or that it could
be reasonably concluded that a different result would have followed had the continuance
been granted.” Id. (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)).




                                               -6-
       In denying the Defendant’s motion, the trial court found that the motion was not
timely because the Defendant raised the motion for the first time after the jury had been
sworn and jeopardy had attached. The trial court further found that the Defendant had not
shown how he was prejudiced. The trial court found that the Defendant, who was on bond,
could have gone to the scene and taken any measurements he wanted after viewing the video.
The Defendant has not proven that the trial court abused its discretion by denying the
continuance. On appeal, he does not state how, if granted, a continuance would have assisted
him in presenting his case. He states only that he would have had more time to review
“specific locations” and “persons located” at the accident site. This bare allegation does not
suffice to show that the outcome of his trial would have been different had the trial court
granted the motion to continue. He is, therefore, not entitled to relief on this issue.

                               B. Prosecutorial Misconduct

       The Defendant next contends that the prosecutor committed misconduct during
closing arguments. He asserts that, after the trial began and during opening statements, the
State’s attorney represented that the proof would show that the Defendant stated, “I’m not
going to give that damn D.A. that much to work with” when asked to submit to a field
sobriety test. No witness at trial testified to this. The Defendant further takes issue with the
State’s attorney comparing the existence of Steve Lance to that of “Leprechauns and Fairy
God Mothers.” Finally, the Defendant argues that the State’s argument that “everybody at
the scene says this man was driving except him” was also improper. The State counters that
the Defendant has waived this issue by failing to make a contemporaneous objection at trial.
The State further contends that the Defendant has failed to show that the statements were
improper or that they affected the outcome of the trial.

        The Defendant failed to object at the trial to any of the prosecutor’s statements.
Typically, when a prosecutor’s statement is not the subject of a contemporaneous objection,
the issue is waived. Tenn. R. Crim. P. 33 and 36(a); see also State v. Thornton, 10 S.W.3d
229, 234 (Tenn. Crim. App. 1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim.
App.1997); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (stating that the
failure to object to the prosecutor’s alleged misconduct during closing argument waived later
complaint). The Defendant raised this issue in his motion for new trial, and the trial court
addressed the issue on its merits. Accordingly, we will also review the issue on its merits.

        In general, the scope of opening and closing arguments is subject to the trial court’s
discretion. Counsel for both the prosecution and the defense should be permitted wide
latitude in arguing their cases to the jury. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.
1998). Argument, however, must be temperate, “predicated on evidence introduced during
the trial,” and relevant to the issues being tried. State v. Keen, 926 S.W.2d 727, 736 (Tenn.

                                              -7-
1994). Thus, the State must not engage in argument designed to inflame the jurors and
should restrict its comments to matters properly in evidence at trial. State v. Hall, 976
S.W.2d 121, 158 (Tenn. 1998).

        When a reviewing court finds improper argument, five factors should be considered
to determine whether a prosecutor’s improper conduct could have affected the verdict to the
“prejudice of the defendant.” State v. Philpott, 882 S.W.2d 394, 408 (Tenn. Crim. App.
1994). The factors are: (1) the conduct complained of in light of the facts and circumstances
of the case; (2) the curative measures undertaken; (3) the intent of the prosecutor in making
the improper remarks; (4) the cumulative effect of the improper conduct and any other errors
in the record; and, (5) the relative strength or weakness of the case. Id. (citing Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see also State v. Goltz, 111 S.W.3d 1, 5
(Tenn. Crim. App. 2003).

      In State v. Goltz, this Court set out the following five recognized areas of
prosecutorial misconduct related to argument of counsel:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.

       2. It is unprofessional conduct for the prosecutor to express his personal belief
       or opinion as to the truth or falsity of any testimony or evidence or the guilt of
       the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App.
       1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); Tenn.
       Code of Prof’l Responsibility DR 7–106(c)(4).

       3. The prosecutor should not use arguments calculated to inflame the passions
       or prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State v.
       Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).

       4. The prosecutor should refrain from argument which would divert the jury
       from its duty to decide the case on the evidence, by injecting issues broader
       than the guilt or innocence of the accused under the controlling law, or by
       making predictions of the consequences of the jury’s verdict. See Cauthern,
       967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

       5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue
       facts outside the record unless the facts are matters of common public
       knowledge.



                                               -8-
111 S.W.3d at 6.

        In the case presently before us, we will address each contention in turn. The
Defendant first takes issue with the prosecutor’s statement that the proof would show that
the Defendant stated, “I’m not going to give that damn D.A. that much to work with” when
law enforcement officers asked him to submit to a field sobriety test. This statement
occurred during opening arguments. During the trial, Officer Brown testified that, when the
Defendant was asked to submit to a field sobriety test, he responded that “he wasn’t going
to give the D.A. anything to work with.” While the use of the word “damn” was gratuitous,
the prosecutor’s presentation of the facts was substantially the same as the facts to which
Officer Brown testified. Further, the prosecutor corrected himself during closing argument
saying, “I misspoke this morning. I used the word damn. That damn D.A. That was wrong.
That’s why proof comes from the witness box, proof comes from the video tape you saw.
Proof doesn’t come from me.” The trial court found that there was “no prejudice towards
the [D]efendant regarding the statements made by the prosecutor, as those statements were
never presented at trial.” We conclude that, under these facts, the Defendant has not shown
that the prosecutor’s statement prejudiced him.

        The Defendant next contends the prosecutor committed misconduct when the
prosecutor compared the existence of Steve Lance to that of “Leprechauns and Fairy God
Mothers.” These statements occurred during closing arguments. The trial court found, “The
State suggested the [D]efendant had made no efforts to locate the driver, Steve Lance, nor
had the [D]efendant disclosed the name of the driver until trial. [The] Defendant asserts a
subpoena was previously issued for Steve Lance and that the State should have
acknowledged that information. . . . The Court was unable to locate the above mentioned
subpoena issued for Steve Lance.” After reading the closing argument in its entirety, we
conclude the trial court did not err when it denied the Defendant’s motion for new trial on
this issue. The prosecutor’s theory of the case was that the Defendant had fabricated his
story that a “Steve Lance” was driving his truck at the time of the accident. Steve Lance was
not called as a witness, and the trial court found that the Defendant had not issued a subpoena
for Steve Lance. We conclude the prosecutor’s argument was not improper.

        Lastly, the Defendant contends that the prosecutor’s argument that “everybody at the
scene says this man was driving except him” was also improper. As the State points out in
its brief, Mr. Hulme testified that the Defendant approached him on the driver’s side of Mr.
Hulme’s vehicle and apologized for hitting him saying he “couldn’t stop.” Sergeant Wyatt
testified during cross-examination that a witness at the scene pointed out the Defendant as
being the driver of the Defendant’s truck, which was the cause of the accident. A witness
at the scene provided the sergeant with a description of the driver, that description matched
the Defendant, and, based upon this, the sergeant began following the Defendant on foot.

                                              -9-
We conclude that the prosecutor’s argument was not improper considering the evidence
presented during the trial. The Defendant is not entitled to relief on this issue.

                                   C. Jury Deliberation

       The Defendant contends that a distraction during the jury deliberation likely caused
a hurried and potentially incorrect verdict. He notes that the jury was sent for deliberations
at the end of a “long day” and that, a short time after they began deliberating, a
“loud/unnerving” fire alarm began sounding in the judicial building. The Defendant
contends that the “sanctity of the jury was disturbed to such an extent that there is no
assurance of a fair and reasoned consideration.” The Defendant offers no citation to any
legal authority to support his argument. The argument is, therefore, waived. Tenn. R. Crim.
App. 19(b); Tenn. R. App. P. 27(a)(7).

                                D. Sufficiency of Evidence

       The Defendant next contends that the evidence is insufficient to sustain his
convictions for DUI, 4th offense or greater and the “associated charges.” He bases his claim
on the fact that there was insufficient proof to show that he was the driver of the vehicle
involved in the accident in this case. The State asserts that, when viewed in the light most
favorable to the State, a reasonable juror could conclude that the Defendant was the driver
of the vehicle and committed the offenses.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “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)).

                                             -10-
        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate 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. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the 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. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). 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. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). 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. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       To prove DUI, the State must prove beyond a reasonable doubt that a defendant drove
or was “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 . . . while . . . [u]nder the
influence of any intoxicant[.]” T.C.A. § 55-10-401(a)(1) (2008).

       The proof, viewed in the light most favorable to the State, proves that a truck
registered to the Defendant was involved in a collision, rear ending a truck and causing a
four-car accident. Shortly after the accident, the Defendant approached Mr. Hulme and
apologized for hitting him explaining he could not stop. A witness at the scene provided a
description of the driver of the Defendant’s truck, who had left the scene of the accident.
The description of the driver matched the Defendant’s description. In the videotape of the

                                              -11-
Defendant’s refusal to take field sobriety tests, the Defendant admits that he was alone at the
time of the accident. We conclude that this evidence is sufficient to prove that the Defendant
was driving at the time of the accident. Further, toxicology reports prove that he was
intoxicated at the time of the accident. A rational jury could have found the essential
elements of the offense beyond a reasonable doubt. The Defendant is not entitled to relief
on this issue.

                                       III. Conclusion

        Based on the aforementioned reasoning and authorities, we conclude theat no error
exists in the judgments of the trial court. The trial court’s judgments are, therefore, affirmed.

                                                     ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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