        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 6, 2013

            STATE OF TENNESSEE v. FRANKLIN D. MOORE

                  Appeal from the Circuit Court for Madison County
                        No. 12170    Donald H. Allen, Judge




                No. W2012-02439-CCA-R3-CD - Filed August 27, 2013


The Defendant-Appellant, Franklin D. Moore, was convicted by a Madison County jury of
driving under the influence (DUI), fourth offense, and sentenced to two years in the
Tennessee Department of Correction. The sole issue presented for our review is whether the
evidence is sufficient to support the conviction. Upon our review, the judgment of the trial
court is affirmed.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the Defendant-
Appellant, Franklin D. Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; James G. Woodall, District Attorney General; and Anna Banks Cash,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       On November 19, 2011, Defendant-Appellant Moore was involved in a motorcycle
accident in Madison County, Tennessee. A responding deputy observed that Moore had an
odor of alcohol, slurred speech, and was unsteady on his feet. After advising the deputy that
he had been drinking and was “too drunk” to perform field sobriety tests, Moore was arrested
for driving while under the influence (DUI). The following proof was adduced at trial.

      Shortly after 9:00 p.m. on November 19, 2011, Deputy Mark Taylor of the Madison
County Sheriff’s Department responded to a single-vehicle accident on Caldwell Road in
Madison County, Tennessee. Deputy Taylor testified that when he arrived at the scene,
Moore was standing by a motorcycle that had wrecked into a ditch at a curve in the road. It
had apparently gone straight at the curve and hit an earth embankment.            During his
investigation, Deputy Taylor observed the following:

       I asked [Moore] what happened and I started investigating the wreck and he
       told me he had been at Sadie Lou’s. It’s a bar there in the Bemis area. [Moore]
       told me he had been there for a benefit for another motorcyclist who had been
       in a wreck a week or two prior to that. I noticed he had an odor of alcohol
       emitting from his person when he spoke. He was slightly unsteady on his feet.
       His speech was a little slurred. I immediately thought to myself that he was
       under the influence of something.

       Deputy Taylor testified that Moore told him that “he had more than six beers” but did
not recall whether Moore told him when he had consumed them. Deputy Taylor did not
observe Moore to have any visible injuries. He further testified that Moore refused treatment
from emergency medical services and declined the offer to be transported to the emergency
room. When Deputy Taylor attempted to administer field sobriety tests, Moore said that he
was “too drunk.” Upon arresting Moore, Deputy Taylor used a form to advise him of the
implied consent law.

        Deputy Taylor explained that the form requested Moore to submit to a chemical test
to determine the alcohol or drug content of his blood. It further advised Moore that he could
refuse to submit to the test, though such refusal may result in additional imprisonment and
a suspension of the individual’s driver’s license. Initially, Moore verbally agreed to submit
to a blood test. While en route to Jackson-Madison County General Hospital, Deputy Taylor
picked up Deputy Logan Copley, who was in training, to assist him. Deputy Taylor testified
that after arriving at the emergency room, Moore changed his mind and refused to take the
blood test. Moore was then transported to the Criminal Justice Complex (CJC) where he
signed the implied consent form indicating his refusal.

        Deputy Taylor believed Moore was intoxicated based on the following observations:
(1) the smell of alcohol on his breath; (2) he was unsteady on his feet; (3) an admission that
he had been drinking at a bar; and (4) slurred speech. Deputy Taylor testified that he
arrested Moore after he said he was “too drunk” to perform the field sobriety tests. Deputy
Taylor said that Moore was cooperative during arrest.

       On cross-examination, Deputy Taylor acknowledged that “[Moore] said he had fallen
asleep.” He also acknowledged that he was not a medical care professional and that it was
possible that an individual could have undetected internal injuries or may be physically
impaired or unable to complete field sobriety tests.

       Deputy Logan Copley of the Madison County Sheriff’s Department testified that he
was in training and rode in the patrol car with Deputy Taylor and Moore to the emergency

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room. Deputy Copley corroborated the testimony of Deputy Taylor regarding Moore’s
refusal to submit to a blood test upon arrival at the hospital.

        Defendant-Appellant Moore testified that he had been in Mobile, Alabama the day
before the arrest. He was seeking construction work there but he normally lived in Jackson,
Tennessee. When work was unavailable in Mobile, Moore drove overnight to return to
Jackson to participate in a benefit he had helped organize. Moore said the benefit involved
a fish fry and visits to six local bars throughout the day. The purpose was to raise money for
the family of a friend who had died in a motorcycle accident. Moore said he had slept for
“roughly about an hour or so” the night before. He left Mobile at 9:00 p.m. and arrived in
Jackson around 5:00 a.m. on the day of the arrest. The tent set-up and preparations for the
fish fry began at 6:00 a.m., and he helped cook fish from 10:00 a.m. to 1:00 p.m. From 1:00
p.m. to approximately 9:00 p.m., he participated in a charity event in which he drank a beer
and socialized for an hour each at six different bars.

       Defendant-Appellant Moore said that he was on his way home when the accident
occurred. He was “dead tired” and was about two miles from his residence when he “dozed
off for a split second.” He testified that he hit his head and was knocked out, but was
responsive by the time Deputy Taylor arrived. He did not recall going over a form with
Deputy Taylor nor was he aware of the papers he signed at the jail. He testified that the
accident caused five broken ribs and “crushed [his] left knee.” He also experienced whiplash
and a concussion. He explained that he suffered memory loss as a result of the accident. He
specifically recalled the following:

       When I hit my head, I don’t remember certain things. I mean, I had a helmet
       on and I still had a big knot and plus I had a concussion. I remember [Deputy
       Taylor] wanting to do [sobriety tests] and I said that I can’t meaning physically
       I was not able . . . I don’t know what he wrote down, but my knee was crushed.
       I couldn’t walk. It’s all documented.

        Defendant-Appellant Moore said that due to his concussion, he did not recall refusing
emergency medical treatment. He further testified that the first time he had been to the
hospital that night was after he had been booked at the jail. When he took off his shirt to
change into a jumpsuit, his whole side “just stuck out and it was black.” Upon seeing the
bruises, the bailiff had him transported to the emergency room where the staff conducted
tests determining “the concussion and everything.” He testified that the doctor wrote down
“bruised ribs” on the night of the arrest but that a different doctor the following Monday
characterized his ribs as “fractured.” Finally, he said that he had not been to a doctor since
the accident because he was unemployed and did not have health insurance.

        Lieutenant Harold Petty, Assistant Administrator at the Criminal Justice Complex,
testified as a rebuttal witness for the State. Based on the records in the booking logbook,

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Lieutenant Petty said that Moore was brought into the jail at 10:18 p.m. on November 19,
2011, by Deputy Copley. In the early morning at 2:15 a.m. on November 20, Moore was
taken to the emergency room where he remained until returning to the jail at 5:30 a.m.

       Based on the above proof, the jury convicted Defendant-Appellant Moore of DUI.
He entered a guilty plea to the enhancement count charging him as a prior offender with three
prior DUI convictions in Madison County. As a Range I, standard offender convicted of a
Class E felony, Moore received a two-year sentence. Following the denial of his motion for
a new trial, Moore filed this timely appeal.

                                           ANALYSIS

       I. Sufficiency of the Evidence. On appeal, Moore contends that the evidence is
insufficient to support his conviction for DUI. He asserts that the motorcycle accident was
due to fatigue rather than intoxication. He argues that he consumed approximately six beers
over the course of eight to nine hours. Furthermore, he claims that it was pain from his
physical injuries, and not inebriation, that prevented him from performing field sobriety tests.
The State argues that the evidence, when viewed in the light most favorable to the State, was
sufficient to find Moore guilty of DUI. We conclude that the evidence is sufficient to sustain
Moore’s conviction.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
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
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. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the evidence, this
court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the jury, approved by
the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also


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“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        “In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he 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) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard
of review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,
689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000). The court in
Dorantes specifically adopted the standard for circumstantial evidence established by the
United States Supreme Court in Holland:

              “Circumstantial evidence . . . is intrinsically no different from
       testimonial evidence. Admittedly, circumstantial evidence may in some cases
       point to a wholly incorrect result. Yet this is equally true of testimonial
       evidence. In both instances, a jury is asked to weigh the chances that the
       evidence correctly points to guilt against the possibility of inaccuracy or
       ambiguous inference. In both, the jury must use its experience with people and
       events in weighing the probabilities. If the jury is convinced beyond a
       reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

        We conclude that the evidence, viewed in the light most favorable to the State, is
sufficient to support Moore’s conviction for DUI. The State had to prove beyond a
reasonable doubt that Moore 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). Although Moore argues that he was suffering from fatigue rather than inebriation,
this court has held that in DUI cases, a police officer’s testimony, by itself, is sufficient
evidence to convict a defendant of DUI. See State v. Vasser, 870 S.W.2d 543, 544 (Tenn.
Crim. App.1993) (stating that the State did not need more than the deputy’s testimony to
prove its DUI case). Here, Deputy Taylor testified that when he arrived at the scene of the


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accident, he saw Moore standing next to a wrecked motorcycle in a ditch on Caldwell Road.
He observed that Moore was unsteady on his feet, smelled of alcohol, and had slurred speech.
When Deputy Taylor asked him what had happened, Moore said he had been at a local bar
and that “he had more than six beers.” Moore was unable to follow instructions when
Deputy Taylor attempted to administer field sobriety tests. Deputy Taylor arrested Moore
after he said he was “too drunk” to perform the tests. Deputy Taylor said that he did not
observe any injuries to Moore and that Moore initially declined medical treatment. In our
view, the jury simply rejected Moore’s explanation of his behavior, as was their prerogative,
and accredited the testimony of Deputy Moore. Accordingly, we conclude that the evidence
was sufficient to sustain the conviction for DUI, fourth offense.

                                     CO N C L U S IO N

       We conclude the evidence is sufficient to sustain the conviction for driving under the
influence of an intoxicant, fourth offense. The judgment of the trial court is affirmed.




                                                   ___________________________________

                                                   CAMILLE R. McMULLEN, JUDGE




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