         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                       AUGUST SESSION, 1997                   FILED
                                                              November 18, 1997
STATE OF TENNESSEE,        )     C.C.A. NO. 02C01-9610-CC-00365
                                  )                      Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
          Appellee,               )
                                  )    LAUDERDALE COUNTY
                                  )
V.                                )
                                  )    HON. JOSEPH H. WALKER,
DAVID SCOTT MOSS,                 )    JUDGE
                                  )
          Appellant.              )    (DUI)




FOR THE APPELLANT:                FOR THE APPELLEE:

WILLIAM DAN DOUGLAS, JR.          JOHN KNOX WALKUP
109 North Main                    Attorney General & Reporter
Ripley, TN 38063
                                  CLINTON J. MORGAN
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  ELIZABETH T. RICE
                                  District Attorney General

                                  MARK DAVIDSON
                                  Assistant District Attorney General
                                  302 Market Street
                                  P.O. Box 562
                                  Somerville, TN 38068


OPINION FILED ________________________

CONVICTION AFFIRMED; SENTENCE MODIFIED

THOMAS T. WOODALL, JUDGE
                                 OPINION


       The Defe ndan t, David Scott M oss, a ppea ls as of rig ht from his conviction

of driving under the influence of an intoxicant (DUI) following a non-jury trial in the

Circu it Court of Lauderda le County. In his sole issue on appeal, the Defendant

argues that the evidence was insufficient to sustain the conviction. We affirm the

judgm ent of the tria l court.



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the eviden ce in th e light m ost favo rable

to the pros ection, an y rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jack son v. V irginia, 443 U.S.

307, 319 (1979 ). This standard is applicable to findings of guilt predicated upon

direct eviden ce, circ ums tantial e vidence or a combination of direct and

circumstantial evidenc e. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). O n appe al, the State is entitled to th e strong est legitimate view of

the eviden ce an d all inference s therefro m. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).       Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evid ence is insufficient to support the

verdict returned by the trier of fa ct. State v. Williams, 914 S.W.2d 940, 945

(Tenn. Crim. App. 1995) (citing State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982)).




                                          -2-
        Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all factual issues raised by the evidence , are

resolved by the tr ier of fac t, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835.



        On May 28, 1995, at approxim ately 1:30 a.m., Mike Kirkpatrick, a d eputy-

sheriff with the La uderda le Coun ty Sheriff’s Department, observed a car weaving

back and forth across the center line of Highway 51 at a speed of 60 miles per

hour.   Kirkpatrick p ulled the c ar over an d aske d the De fendan t to step ou t.

Officer Kirkpatrick testified that at this point he could smell alcohol on the

Defendant and that his speech was slurred. He also observed six empty beer

bottles in the passenger side floor board with “no alcohol left in any of them, you

know, except for the suds in the bottom of them.” He then asked the Defendant

to perform field sobriety tests.



        First, Officer Kirkpatrick asked Defendant to recite the alphabet and

Defendant was able to do this. Second, Defendant attempted the one-leg stand

test, but was unable to keep his balance. He failed this test twice. Defendant

told Officer Kirkpatrick that he did not have any phys ical injuries to his legs that

would prevent h im from perform ing the test. Third, Defendant performed the

heel-to-toe test, during which he could not wa lk hee l-to-toe and h e lost h is

balance several tim es. Finally, Officer Kirkpatrick conducted the horizontal gaze

nystagmus test on Defen dant.        He ob served that De fendant’s eyes were

bloodshot and th at “they were ju mpin g” whic h indic ated to the deputy that

Defendant had been drinking. The Defendant did not object to the testimony

                                         -3-
regarding the results of the horizontal gaze nystagmus test, and we note that

even if he had, and the evidence were ruled to be inadmissible, that our

conclusion as to the sufficiency of the evidence in this case would not change.

See State v. Turner, C.C.A. No. 03C01-9604-CC-00151, slip op. at 7, Cocke

Coun ty (Tenn. Crim. App., Knoxville, July 9, 1997) (N o Rule 11 a pplication filed);

State v. Murphy, C.C.A. No. 01C01-9412-CC-00401, Davidson County (Tenn.

Crim. App., Nashville, filed Oct. 6, 1995), perm. to appeal granted (Tenn. 1996).




       On the basis of De fendant’s driving, his slurred speech, the empty beer

bottles, and his performance on the field sobriety tests, Deputy Kirkpatrick

concluded that Defendant was under the influence of alcohol and arrested him.

Defen dant refu sed to tak e an intox imeter te st.



       For the defense, Stephanie Spain testified that on May 28, 1995, she met

the Defenda nt in Dyersburg , Tennes see so they co uld ride together to Union

City, Tennes see for a political fund raising dinner. She met Defendant about 6:00

p.m. at the Holiday Inn in Dyersburg. The dinner started at 7:00 p.m. and she

said that no alcoholic beverages were served at the function. After dinner, she

and Defendant drove back to Dyersburg and went to a bar called Checkers at

approximately 10:30 p.m. She testified that the Defendant drank one beer and

poss ibly started a second one while at the bar. They then left and went to the

Holiday Inn where Defendant had left his car earlier that evening. A few minutes

later they decided to go for a drive towards the river, and she testified that neither

of them were drinking. They then went back to the Holiday Inn about 1:00 a.m.

where Defendan t got into his c ar to drive to M emph is, and sh e drove h ome to

                                          -4-
Jackson. Ms. Sp ain testified that in her opinion, Defendant did not appear to be

intoxicated .



       The Defendant testified at trial to the same events as Ms. Spain.

Furthermore, he explained that the reason his car was weaving when the officer

stopped him was because his steering was out of line. He admitted to the officer

that he had drank one or two beers earlier that evening. The Defendant testified

that he passed the field sobriety tests, and that the reason he was a little shaky

was because he was nervous and it was late at night. Defendant also testified

that the reason he refused the intoximeter test was because he was taking allergy

medic ine and he was conce rned tha t it would affec t the results of the test.



       Driving under the influence is defined in part as driving or being in physical

control of an automobile on any of the public roads and highways of the State of

Tennessee, or on any streets or alleys while under th e influenc e of any into xicant.

Tenn. Code Ann. § 55-10-401 (a)(1) (Supp. 19 96). Therefore, the evidence must

show that the offender: “(1) was in physical control of an automobile, (2) on a

public road within the State of Tennessee, and (3) was under the influence of an

intoxicant.” State v. Waddey, C.C.A. No. 01C01-9508-CC-00245, slip op. at 3,

W illiamson County,       (Tenn. Crim. App., Nashville, July 5, 1996) (Rule 11

application not filed).




                                         -5-
         First, from the testimony at trial, Defendant was clearly in physical control

of his car. Officer Kirkpatrick observed the car weaving back and forth, pulled the

car over, and Defen dant step ped ou t of the driver’s side. Second, Defendant

drove his car on Highway 51, a public road within the State of Tennessee. Third,

based on Office r Kirkp atrick’s observations of Defendant and his experience, he

determined Defe ndan t to be c learly un der the influen ce of a lcoho l. The trial court

could have co nclude d from Defendant’s erratic driving, his slurred speech, the

empty beer b ottles in his car , and h is failure to ade quate ly perfo rm two of the fie ld

sobrie ty tests, th at the D efend ant wa s und er the in fluenc e of alc ohol.



         In viewing the evidence in the light most favorable to the State, the

evidence was sufficient to support a conviction for DUI. This issue is without

merit.



         Neither party raise d the leng th of sente nce for D efendant’ s conviction of

DUI first offense as an issue in this appeal. The trial court sentenced Defendant

to serve six (6) months in the county jail with all but forty-eight (48) h ours

suspended, and assessed a $350.00 fine. The DUI statutes mandate that the

maximum sente nce fo r a DU I convic tion is eleven (11) months and twenty-nine

(29) days, with the trial court to determine what portion of the sentence above the

manda tory minimum punishme nt must be served prior to a defendant being

placed on prob ation. State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App.

1996); Tenn. C ode Ann . § 55-10-403 (c). Furthermo re, Section 55-1 0-403(c)

requires that D.U.I. offenders be placed on probation for the difference between

the tim e actu ally served a nd the m aximum possible senten ce. Accordingly, we

affirm the Defendant’s conviction for DUI first offense, but mod ify the D efend ant’s

                                            -6-
sentence by increasing it to eleven (11) months and twenty-nine (29) days, with

all but forty-eight (48) hours suspended. All other portions of the sentence

imposed by the trial court shall remain the same. The judgment of the trial cour t,

as modified, is accordingly affirmed.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
DAVID G. HAYES, Judge


___________________________________
JERRY L. SMITH, Judge




                                        -7-
