        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       June 26, 2013 Session

              STATE OF TENNESSEE V. TRACY H. GRAVES

                Appeal from the Criminal Court for Hamblen County
                    No. 10CR536     John F. Dugger, Jr., Judge


                  No. E2012-01160-CCA-R3-CD - Filed July 25, 2013


A Hamblen County jury convicted the Defendant, Tracy H. Graves, of driving under the
influence (“DUI”) second offense, and the trial court sentenced the Defendant to eleven
months and twenty-nine days’ incarceration. On appeal, the Defendant contends that the
evidence is insufficient to sustain his DUI conviction because his vehicle was not in a
location named in the indictment. After a thorough review of the record and the relevant
authorities, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Ricky A.W. Curtis, Blountville, Tennessee, for the appellant, Tracy H. Graves.

Robert E. Cooper, Jr., Attorney General & Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Barry P. Staubus, District Attorney General; Dan E. Armstrong, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          I. Facts

       This case arises from events that led to the Defendant’s arrest on July 6, 2010.
Pursuant to the events leading to his arrest, a grand jury indicted the Defendant on November
1, 2010, for one count of DUI and one count of DUI second offense. At the Defendant’s trial
on these charges, the parties presented the following evidence:

       Officer Devin Cribley, of the Morristown Police Department, testified that he was
dispatched to a Days Inn in Morristown, Tennessee, regarding “an intoxicated person behind
the wheel of a vehicle in the parking lot.” Officer Cribley stated that as he pulled into the
hotel, he saw a yellow Jeep Wrangler parked facing the wrong direction on an “access
street.” He saw a man sitting in the driver’s seat. Officer Cribley identified the Defendant
as the man sitting in the Jeep when he arrived at the scene. The officer noted that the
Defendant had bloodshot eyes, slurred speech, and had difficulty producing his license and
registration when the officer directed him to do so. The officer smelled the odor of alcohol
on the Defendant.

        Officer Cribley testified that he administered field sobriety tasks including the “walk
and turn” and the “one-legged stand” and determined that the Defendant was impaired.
Officer Cribley searched the Jeep and found a cooler in the back seat on the passenger side
of the vehicle that contained five opened and partially empty liquor bottles. The Defendant
consented to a blood alcohol test, and he submitted a blood sample at a hospital. Officer
Cribley testified that the Tennessee Bureau of Investigation (“TBI”) later tested the sample,
and the result, according to the TBI report admitted into evidence, was that the Defendant
had a blood alcohol level of .26%. The officer administered a breathalyzer to the Defendant
approximately an hour after his blood was drawn, which indicated the Defendant’s blood
alcohol level was .23%.

       During cross-examination, Officer Cribley testified that the Defendant repeatedly told
him that he was not driving the vehicle. The officer admitted that a defense witness, Donald
Kimbrough, had stated that he drove the Jeep to the Days Inn. Officer Cribley continued to
say that he did not speak with Kimbrough during his investigation.1 The Days Inn’s night
clerk told Officer Cribley that “someone” had rented a hotel room for the Defendant, but
Officer Cribley did not believe a room had been rented because he did not find a receipt or
a room key proving a rental. Officer Cribley admitted that field sobriety tasks were not
necessary given the Defendant’s obvious impairment.

       During redirect examination, Officer Cribley stated that he determined that he did not
need to talk to Kimbrough because the Defendant was not arrested for driving but for being
in physical control of a vehicle.

        The State played a video recording of the Defendant’s arrest, which was filmed by
Officer Cribley’s dashboard camera. The DVD, which the trial court admitted into evidence,
began just before Officer Cribley turned his vehicle off of a road towards the Days Inn. No
street sign was visible when Officer Cribley turned into the apparent parking lot. On the left,
the officer passed several parking spots in front of what appeared to be an apartment or hotel
building on his left. On the right, the pavement did not have a curb until just before the Days


       1
          Officer Cribley’s testimony does not indicate how he became aware of Kimbrough’s statement
without talking to him.

                                                -2-
Inn building, next to where the Defendant’s Jeep was parked. Upon arriving at the scene, the
Days Inn building was on the left and had a canopy extending to the right over about half the
width of the pavement. The Defendant’s Jeep was located to the right of the canopy, on the
other half of the pavement. An arrow indicating the direction of traffic was painted on the
ground in front of the Jeep, and the arrow was pointing in the opposite direction of the way
the Jeep was facing. The video records Officer Cribley and another officer interacting with
the Defendant.

       Donald Kimbrough testified that he first met the Defendant on July 6, 2010, through
a mutual friend, Jenny Jarnigan, when they were with friends at a Planet Wings restaurant.
Kimbrough recognized that the Defendant was “drunk” while the group was at Planet Wings
because the Defendant was staggering and spilling drinks. When employees asked the
Defendant to leave Planet Wings, Kimbrough believed the Defendant was too intoxicated to
operate a vehicle, so Kimbrough took the Defendant’s keys from him. Kimbrough then
drove the Defendant in the Defendant’s Jeep to the Days Inn and rented a room for him.
Kimbrough left the Defendant inside the room. Kimbrough testified that the Defendant’s
Jeep was black in color.

       On cross-examination, Kimbrough stated he believed the Defendant’s Jeep to be black
in color but that if there were evidence showing otherwise, he would be incorrect. When
employees asked the Defendant to leave Planet Wings, Kimbrough believed that the
Defendant planned on driving and that he should take the Defendant’s keys from him.
Kimbrough and the Defendant had an argument in the parking lot of the Days Inn, which
Kimbrough attributed to the Defendant’s intoxication. He left the Jeep parked in front of the
Days Inn outside of a canopy, which was where the clerk had told Kimbrough to park the
Defendant’s vehicle. Kimbrough could not remember if that location was an actual parking
spot. Kimbrough said that, after he parked the Defendant’s car, he returned to the
Defendant’s room and left the Defendant’s car keys on a night stand in the hotel room. Jenny
Jarnigan informed Kimbrough about the Defendant’s arrest, but Kimbrough felt that he had
no relevant information to give the arresting officer regarding the incident. Kimbrough also
admitted to being convicted of criminal impersonation in 2004.

        The Defendant testified that on July 6, 2010, he was visiting Jarnigan while on
vacation. The Defendant consumed alcohol at Douglas Lake, and then Jarnigan drove him
to Planet Wings. At Planet Wings, the Defendant admitted he got into a “fight” with
Jarnigan because he was jealous of Kimbrough flirting with her. As a result of this “fight,”
he was asked to leave the establishment. Kimbrough then drove the Defendant in his Jeep
to the Days Inn. The Defendant stated he had no intent to drive his Jeep during the evening.
When Officer Cribley found him in his Jeep, he was retrieving clothes and his stereo’s
faceplate.



                                             -3-
        On cross-examination, the Defendant admitted that Kimbrough identified his Jeep as
black, when, in fact, the body is yellow. He also admitted that he originally believed
Kimbrough had left him in the parking lot of the Days Inn, but he later realized that
Kimbrough had rented him a room and left him there. He blamed his confusion on his
alcohol consumption. The Defendant said that he went to retrieve items from his Jeep,
including clothes and jewelry, because the vehicle had a “rag top,” and he did not want
anything to be stolen from his vehicle. The Defendant explained that he was right-handed
and that it was easier to collect things from his Jeep while seated in the driver’s seat. The
Defendant described removing his stereo faceplate as “tricky.” He admitted that he had
enough time between Officer Cribley arriving at the scene and walking to the Jeep that, had
the keys been in the ignition, he could have removed them. The Defendant conceded that the
Jeep itself was functioning, and he could have left the scene in his vehicle had he chosen to
do so.

        The State called Officer Cribley as a rebuttal witness. Officer Cribley stated he had
owned a Jeep of similar year and model, and that he could remove his stereo’s faceplate from
either the driver’s side or the passenger side. Officer Cribley said he was left handed.

       The jury convicted the Defendant of both counts of the indictment, and the trial court
sentenced him to eleven months and twenty-nine days’ incarceration. On appeal, the
Defendant contends only that the evidence is insufficient to sustain his DUI conviction.

                                         II. Analysis
        The Defendant contends that the indictment only alleged that he was knowingly in
physical control of an automobile “while on the premises of any shopping center, trailer park,
or any apartment house complex, or any other premises that is generally frequented by the
public at large,”2 and that there was no proof at trial that he was in one of those locations.
Accordingly, he asserts that the evidence was insufficient to sustain his conviction for DUI.
The Defendant argues that the proof only shows that he was intoxicated while in physical
control of a vehicle on a road, and, thus, no rational trier of fact could have found he was in
any of the locations listed in the indictment. The State argues that the evidence was
sufficient because the proof illustrated that the Defendant’s Jeep was located in a space
frequented by the public at large. We agree with the State.

       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) (emphasis in original); see


       2
       The indictment was originally for driving under the influence “upon the public roads, streets, and
highways of the State of Tennessee,” however it was amended to reflect the above-quoted language.

                                                   -4-
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) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). 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) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “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)).

       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) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given 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). “‘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) (quoting State v. Grace, 493 S.W.2d 474,
476 (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. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (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 and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
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

                                              -5-
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000).

        The Tennessee Code Annotated provides, in pertinent part, that “[it] is unlawful for
any person . . . to be in physical control of any automobile or other motor driven vehicle . .
. 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 . . . [t]he
alcohol concentration in such person’s blood or breath is eight hundredths (.08 %) or more.”
Tenn. Code Ann. § 55-10-317 (2008).

        The Defendant’s argument focuses on Officer Cribley’s testimony that the
Defendant’s Jeep was “parked in the wrong direction on an access street.” The Defendant
argues that this use of the word “street,” and the indication that the Jeep was facing the
wrong way, proves that the Jeep was located on a “traveled thoroughfare,” and, thus, there
was no evidence that the Jeep was in a parking lot or other location frequented by the public
at large.

        “Whether an intoxicated driver’s location is at a premises generally frequented by the
public at large is a question of fact.” State v. Dobbins, 265 S.W.3d 419 (Tenn. Crim. App.
2007). Although Officer Cribley’s testimony does describe the location of the Jeep as on a
road, his testimony was not the only evidence presented at trial that could inform a jury about
the Jeep’s location. The video footage from Officer Cribley’s dash camera was also
presented. As noted above, there is no visible street sign when the police cruiser turned into
the Days Inn and there are several parking spaces nearby. Even though Officer Cribley
described the Jeep as being parked on an “access road,” a rational trier of fact, when viewing
the video evidence, could have determined that the Jeep was located in a parking lot or other
place frequented by the public at large, based on the other parking spaces nearby, the lack
of a street sign, and the location of the Jeep just outside of the Days Inn building. We also
note that Officer Cribley was dispatched due to an intoxicated person behind the wheel “in
a parking lot.” This Court will not re-weigh or reevaluate the evidence. Matthews, 805
S.W.2d at 779. There was sufficient evidence for a rational jury to find that the Defendant’s
vehicle was in a place frequented by the public at large, and we will not disturb that finding.
Accordingly, the Defendant is not entitled to relief on this issue.

                                      III. Conclusion
        After a thorough review of the record and the applicable law, we conclude the
evidence is sufficient to support the Defendant’s conviction. We, therefore, affirm the
trial court’s judgment.


                                           ______________________________________


                                              -6-
ROBERT W. WEDEMEYER, JUDGE




 -7-
