        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 10, 2012

                STATE OF TENNESSEE v. GARY L. GRAHAM

               Direct Appeal from the Circuit Court for Fayette County
                        No. 6406    J. Weber McCraw, Judge


                 No. W2011-00103-CCA-R3-CD - Filed May 10, 2012


The defendant, Gary L. Graham, was convicted by a Fayette County Circuit Court jury of
driving under the influence (“DUI”), and the court found the defendant guilty of DUI third
offense and violation of the implied consent law. The court merged the DUI convictions
and sentenced the defendant to eleven months and twenty-nine days, suspended to
misdemeanor probation upon service of 145 days at 75% in the county jail, and suspended
the defendant’s driver’s license for two years as a result of his violation of the implied
consent law. On appeal, the defendant challenges the sufficiency of the evidence convicting
him of DUI. Following our review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Matthew R. Armour, Somerville, Tennessee, for the appellant, Gary L. Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Matt Hooper, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The defendant was indicted on charges of DUI, DUI third offense, and violation of
the implied consent law, after the police received a call that there was a suspicious vehicle
in the drive-through lane of the McDonald’s restaurant in Oakland and discovered the
defendant passed out in his truck.
                                         State’s Proof

        At trial, Sergeant Kenneth Long with the Oakland Police Department testified that
he responded to the McDonald’s restaurant on September 19, 2009, at approximately 2:15
a.m. after receiving a call that there was a suspicious vehicle in the drive-through lane of the
restaurant. When Sergeant Long arrived at the restaurant, he observed a gold-colored truck
parked in the drive-through lane, approximately halfway between the speaker device in the
back where one would order food and the pickup window located near the front of the
restaurant. A man, identified as the defendant, was “asleep, slumped over towards the
[steering] wheel” when Sergeant Long approached, and the engine of the truck was running.

        Sergeant Long testified that his first concern was for the defendant’s safety, as he did
not know whether the defendant was possibly suffering from a diabetic coma or other
medical problem. Sergeant Long approached the driver’s side of the truck and attempted,
for fifteen to twenty seconds, to arouse the defendant by calling for him to wake up. When
the defendant did not wake up, Sergeant Long reached in the open window and jostled the
defendant on the shoulder to wake him. The defendant awoke and indicated that he was all
right. Sergeant Long noticed an odor of alcohol emanating from the defendant as he spoke,
and the defendant seemed “[a] little detached from what was going on.” The defendant
admitted that he had been drinking at the Ozone, a bar in Oakland, prior to driving, but he
did not indicate how much he had to drink. The defendant told Sergeant Long that he
“d[id]n’t want to be in any trouble.”

        After speaking to the defendant for three or four minutes, Sergeant Long suspected
that the defendant was intoxicated and asked him to step out of his truck to perform some
field sobriety tests. The defendant appeared to be unsteady on his feet as if he had to process
his movements, and the unsteadiness did not improve as it would with someone who was
waking up. The defendant’s speech was “slow and staggered.” Sergeant Long also noted
that the odor of an intoxicant became stronger when the defendant exited the truck.

        Sergeant Long testified that he had the defendant perform the nine-step walk-and-turn
test and one-leg stand test. With regard to the walk-and-turn test, the defendant was
“unsteady” when Sergeant Long explained the test and then performed the task poorly. The
defendant started the test too soon, stepped off the line during the first five steps, and then
failed to walk heel-to-toe the remaining four steps. Instead of pivoting and taking nine
return steps in the heel-to-toe manner, the defendant made a “U-turn” and took fourteen
strides, off the line, back to the starting position. With regard to the one-leg stand test, the
defendant lowered his foot four times and swayed and used his arms to balance himself. The
defendant lowered his foot for the last time at count fifteen, of thirty, and refused to continue
performing the test or perform any other test. The defendant did not complain of having any

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medical conditions that would hinder him from performing the tests.

      Sergeant Long testified that, based on his observations of the defendant, he made the
determination that the defendant was under the influence and too impaired to drive. The
defendant was subsequently placed under arrest and transported to the Oakland Police
Department. While waiting for a tow truck to pick up the defendant’s vehicle, Sergeant
Long read the defendant the implied consent form. The defendant was initially uncertain
whether to submit to a blood alcohol test but ultimately refused to submit to a test. No
alcohol was found in the defendant’s truck.

      On cross-examination, Sergeant Long acknowledged that he only had approximately
two years experience as a police officer prior to the stop in this case. Sergeant Long also
acknowledged that he had never given field sobriety tests to someone who was able to
perform them in a good manner. He admitted that neither he nor any of the other officers
observed the defendant driving on the road.

       Sergeant Samuel Klein with the Oakland Police Department testified that he
responded to the call at McDonald’s and observed the defendant slumped over the steering
wheel of his truck. Because two other officers were already tending to the defendant,
Sergeant Klein went and spoke to the manager who had called about the defendant’s
vehicle.1 While talking to the manager, Sergeant Klein periodically turned to look at the
defendant and recalled that the defendant was “swaying and staggering” when he stepped
out of his truck. Sergeant Klein never spoke to the defendant and only observed a few
glimpses of the walk-and-turn test. Based on his limited observations of the defendant,
Sergeant Klein believed that the defendant’s behavior was more consistent with someone
who was intoxicated than someone who was sleepy, and he believed it was possible that the
defendant was intoxicated.

                                       Defendant’s Proof

       The defendant testified that he had gone to the Ozone bar to have dinner with friends
on the evening of September 19. He could not recall how long he was at dinner that evening
but speculated it could have been from as early as 6:00 p.m. to as late as 10:00 p.m. The
defendant admitted that he had “two or three” drinks over the course of dinner. After
leaving the bar, the defendant went home but did not go to sleep or have anything to drink.
Around 2:00 a.m., he decided to go to McDonald’s. He ordered some food in the drive-
through lane but fell asleep as he was waiting to reach the pickup window. He explained

       1
        The McDonald’s manager who contacted the authorities was unavailable for trial because she had
undergone an appendectomy, was unable to walk, and on pain medication.

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that he was tired from working seven days a week. The defendant denied that he passed out
due to intoxication and testified that he had driven to McDonald’s without any trouble.

       The defendant testified that, after the officers woke him, he performed three field
sobriety tests. He said that the officer neglected to mention that he performed the ABC test
and, in fact, recited his alphabet three times. The defendant acknowledged that he stopped
during the one-leg stand test and that he took strides during the walk-and-turn test. He
explained that he was involved in a car accident in 1979, which caused him to lose his
equilibrium, and that he sometimes lost his balance when walking. He stated that he did not
completely understand the purpose of the implied consent form but ultimately signed saying
that he refused to take the blood alcohol content test.

                                       Rebuttal Proof

       Sergeant Long testified that he had seen the defendant since the incident and had
never noticed him having trouble walking other than on the night in question.

      Following the conclusion of the proof, the jury found the defendant guilty of DUI,
and he waived jury determination of third offense status. The court then found the
defendant guilty of DUI third offense and violation of the implied consent law.

                                         ANALYSIS

      On appeal, the defendant challenges the sufficiency of the evidence convicting him
of DUI, arguing that the State failed to prove that he was impaired and that no officer
witnessed him operate his vehicle. When the sufficiency of the convicting 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. See 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

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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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (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 convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

      The jury convicted the defendant of driving under the influence as forth in Tennessee
Code Annotated section 55-10-401 as follows:

        (a) 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, or on any streets or alleys, or while on the premises of
       any shopping center, trailer park or any apartment house complex, or any other
       premises which is generally frequented by the public at large, while:

               (1) Under the influence of any intoxicant, marijuana, narcotic
               drug, or drug producing stimulating effects on the central
               nervous system[.]”

Tenn. Code Ann. § 55-10-401(a)(1) (2006). In order to determine if a defendant was in
physical control of a vehicle for DUI purposes, the trier of fact looks to the totality of the
circumstances. See State v. Butler, 108 S.W.3d 845, 850 (Tenn. 2003) (citing State v.
Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993)). As with any crime, DUI can be established
by circumstantial evidence. Lawrence, 849 S.W.2d at 764 (quoting State v. Ford, 725
S.W.2d 689, 691 (Tenn. Crim. App. 1986)).

        In the light most favorable to the State, the evidence was sufficient for a rational trier
of fact to find that the defendant drove or was in physical control of a vehicle while under

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the influence. The proof at trial shows that the defendant was found passed out, slumped
over behind the steering wheel of his truck, with the engine running, in the McDonald’s
drive-through lane. When officers were unable to verbally rouse the defendant, Sergeant
Long reached through the truck’s window and jostled him awake. When questioned by
Sergeant Long, the defendant smelled of alcohol and his speech was slow and staggered.
Sergeants Long and Klein both observed that the defendant was unsteady on his feet as he
stepped out of his truck. The defendant subsequently performed poorly on two field sobriety
tests, and he admitted to having two or three drinks earlier in the evening. Based on the
combination of his observations, Sergeant Long formed the opinion that the defendant was
intoxicated. It was the prerogative of the jury to discredit the defendant’s explanations for
the lack of ability to balance and slow and staggered speech he displayed the morning of the
incident, as well as for the peculiar situation of being found asleep in the McDonald’s drive-
through lane. The defendant is not entitled to relief.

                                       CONCLUSION

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


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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