        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 6, 2011

               STATE OF TENNESSEE v. JERRY W. ELLIOTT

             Direct Appeal from the Circuit Court for Henderson County
                       No. 10070-2    Donald H. Allen, Judge


              No. W2011-00030-CCA-R3-CD - Filed February 10, 2012


The defendant, Jerry W. Elliott, was convicted by a Henderson County Circuit Court jury
of driving under the influence (“DUI”), a Class A misdemeanor, and violations of the open
container, financial responsibility, and registration laws, all Class C misdemeanors. He was
sentenced to eleven months, twenty-nine days for the DUI conviction and thirty days for
violations of the open container and registration laws. He also received fines for each
conviction as well as for violation of the financial responsibility law. The trial court
separately found the defendant guilty of violation of the implied consent law, for which his
driver’s license was revoked for one year. On appeal, the defendant challenges the
sufficiency of the evidence convicting him of DUI and also argues that his conviction for
violation of the implied consent law is improper because the charging instrument is not in
the record. After 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 N ORMA M CG EE O GLE and
J EFFREY S. B IVINS, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District
Public Defender; and Hewitt Chatman, Assistant Public Defender (at trial and of counsel on
appeal), for the appellant, Jerry W. Elliott.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                            FACTS

       The defendant was indicted on charges of DUI, violation of the open container law,
violation of the financial responsibility law, and violation of the registration law, after a state
trooper discovered the defendant passed out in his car parked in the right-hand lane of a
highway and investigated the situation.

                                         State’s Proof

      At trial, Trooper Dewayne Stanford, with the Tennessee Highway Patrol, testified that
he was on-duty in Henderson County around 8:00 p.m. on January 24, 2010. Trooper
Stanford had received training in DUI detection, including training in field sobriety testing
and advanced roadside impaired driving enforcement.

        Trooper Stanford testified that he was traveling north on State Route 22 when he saw
the taillights of the vehicle in the right lane ahead of him make a sudden swerving movement
into the left lane. As he got closer, he saw a white vehicle sitting in the right-hand lane with
no lights on, which the other vehicle had swerved around to avoid hitting. He pulled up
behind the white vehicle and activated his rear blue lights to warn other vehicles of the
danger. When he noticed that the vehicle’s tags were expired, he activated all of his blue
lights to issue a citation.

       Trooper Stanford testified that he approached the white vehicle from the right side,
looked in the window, and saw that the driver, the defendant, appeared to be passed out
behind the wheel. Trooper Stanford knocked on the window, and the defendant reached over
and opened the door, lighting a cigarette. Immediately, Trooper Stanford smelled “the odor
of intoxicating beverage” as the defendant spoke to him. He asked the defendant for his
driver’s license and insurance information, and the defendant provided the license but not
the insurance information. Trooper Stanford asked the defendant how much he had to drink,
and the defendant responded that he had consumed two beers and taken his prescribed
medication, Flexeril, about an hour before the stop. Trooper Stanford located the bottle of
Flexeril in the defendant’s pants pocket. He also noticed an open container of an alcoholic
beverage, with some liquid still inside, on the floorboard of the vehicle. The defendant
advised Trooper Stanford that it “was the beer that he was currently drinking . . . [o]r that
he had just drank.” Trooper Stanford later located an empty beer bottle in the defendant’s
vehicle that the defendant claimed was a collector’s item.



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        Trooper Stanford testified that the defendant had slurred speech and appeared as
though he “was confused, almost scared, as if he had just w[o]ken up.” When the defendant
got out of the car, he was unsteady on his feet and appeared to be intoxicated. Trooper
Stanford decided to have the defendant perform some field sobriety tests, which he recorded
with the camera in his patrol car. He administered the horizontal gaze nystagmus test,
followed by the nine-step walk and turn test. During the walk and turn test, the defendant
fell off the line three times, which was a failure of the test, and then claimed that his leg was
hurting. Trooper Stanford next administered a finger dexterity test, which involved touching
the thumb to fingertips while counting. The defendant was not able to successfully complete
the test.

        Trooper Stanford testified that he placed the defendant under arrest for driving under
the influence. Based on his training and experience, Trooper Stanford was of the opinion
that the defendant “was too impaired to safely operate a motor vehicle in the State of
Tennessee.” He also cited the defendant for violation of the implied consent law, violation
of the open container law, violation of the registration law, violation of the financial
responsibility law, and improper parking. Trooper Stanford called one of the defendant’s
friends, Debra Powers, to come and get the defendant’s vehicle.

        Trooper Stanford testified that, once the defendant was in custody, he asked him to
submit to a blood test. Trooper Stanford thought a blood test would be preferable to a
breathalyzer as the breathalyzer would not show the presence of Flexeril, “which would
intensify the effects of alcohol in combination with the alcohol.” Trooper Stanford read the
implied consent form to the defendant and explained that the defendant could possibly lose
his license if he refused to submit to the test. The defendant was initially willing to submit
to a blood test but later refused. Trooper Stanford elaborated that he took the defendant to
the emergency room, and then the defendant “started demanding certain individuals at the
hospital treat him, and other individuals that were there, he refused to be treated by them,
and became unruly, extremely agitated, and refused to cooperate any further.” The
defendant refused to even sign the form. The defendant was then taken to the Henderson
County Jail.

                                     Defendant’s Proof

       Debra Powers testified that she and the defendant have had an off-and-on romantic
relationship for more than thirty years, and she was with the defendant at his house on
January 24, 2010, until 5:15 or 5:30 p.m. She did not see the defendant consume any
alcoholic beverages, although she was inside the house the majority of the time and the
defendant was outside. She acknowledged that she did not know what the defendant did
between 5:15 p.m. and 8:00 p.m. She received a call around 7:15 or 7:30 p.m., asking her

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to pick up the defendant’s vehicle, and her sister drove her to the scene. She was unable to
start the defendant’s car, so she and her sister pushed it into the fire department parking lot.
Powers stated that she had seen the defendant under the influence of alcohol “[n]umerous
times” and, when she spoke with him at the scene of his arrest, he did not appear to be
intoxicated.

        James Coleman testified that he had known the defendant for more than thirty years,
and he was staying at the defendant’s house on the date in question. He recalled that, when
Debra Powers left that afternoon, the defendant was asleep. The defendant woke up around
6:00 or 6:30 p.m. and remained at the house approximately an hour before leaving. Coleman
did not see the defendant consume any alcohol between the time he woke up and the time
he left. He said that he had never seen the defendant intoxicated in all the years he had
known him. Coleman claimed that the defendant was not intoxicated when he left the house
that night. He said that the defendant did not have a beer with him when he left. Coleman
admitted to having been convicted of a number of theft and shoplifting charges.

        After the conclusion of the proof, the jury convicted the defendant of driving under
the influence of a drug and/or intoxicant, violation of the open container law, violation of
the financial responsibility law, and violation of the registration law. The court then found
the defendant guilty for violating the implied consent law, as charged separately from the
indictment.

                                          ANALYSIS

                               I. Sufficiency of the Evidence

        The defendant argues that the evidence is insufficient to sustain his conviction for
driving under the influence, asserting that the jury erred in accrediting the testimony of
Trooper Stanford over the testimony of Debra Powers and James Coleman. 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

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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
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).

       Tennessee Code Annotated section 55-10-401(a)(1) provides, “It is unlawful for any
person to drive . . . any automobile or other motor driven vehicle on any of the public roads
and highways of the state while . . . [u]nder the influence of any intoxicant, marijuana,
narcotic drug, or drug producing stimulating effects on the central nervous system[.]” It is
no defense to a charge of driving under the influence that the offender is a lawful user of the
drugs. Id. § 55-10-402.

       In the light most favorable to the State, the evidence shows that, when Trooper
Stanford encountered the defendant, the defendant was behind the wheel of his car,
apparently asleep, and the car was parked in the road. The defendant told Trooper Stanford
that he had consumed alcohol and taken Flexeril, a prescription medication, approximately
an hour before the stop. The defendant smelled of alcohol, appeared confused, had slurred
speech, and was unsteady on his feet. He failed the field sobriety tests. The defendant had
an open container of an alcoholic beverage, with some liquid still inside, on the floorboard
of the vehicle, which he advised Trooper Stanford “was the beer that he was currently
drinking . . . [o]r that he had just drank.” Based on his training and experience, Trooper
Stanford believed the defendant to be intoxicated. The jury weighed this evidence against
the testimony offered by the defendant’s long-time girlfriend and friend with a criminal
record, claiming that the defendant was not intoxicated. As was its prerogative, the jury

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accredited the testimony of Trooper Stanford. Accordingly, we conclude that the evidence
was sufficient to sustain the defendant’s conviction for DUI.

                           II. Implied Consent Law Violation

       The defendant argues that the trial court erred in finding that he violated the implied
consent law because the record contained no “charging instrument whereby [he] was given
notice that he would be charged with the violation of Tenn. Code Ann. § 55-1[0]-406.”

       Tennessee Code Annotated section 55-10-406 provides:

               Any person who drives a motor vehicle in this state is deemed to have
       given consent to a test or tests for the purpose of determining the alcoholic
       content of that person’s blood, a test or tests for the purpose of determining
       the drug content of the person’s blood, or both tests. However, no such test
       or tests may be administered pursuant to this section, unless conducted at the
       direction of a law enforcement officer having reasonable grounds to believe
       the person was driving while under the influence of alcohol, a drug, any other
       intoxicant or any combination of alcohol, drugs, or other intoxicants[.]

Id. § 55-10-406(a)(1). Before conducting the test, the police officer “shall . . . advise the
driver that refusal to submit to the test or tests will result in the suspension by the court of
the driver’s operator’s license[.]” Id. § 55-10-406(a)(3). If the driver is placed under arrest
and, after being advised of the consequences, refuses to submit to either or both tests, the
driver “shall be charged with violating this subsection (a).” Id. § 55-10-406(a)(4). “The
determination as to whether a driver violated the provisions of this subsection (a) shall be
made at the same time and by the same court as the court disposing of the offense for which
such driver was placed under arrest.” Id. “Any person who violates this section by refusing
to submit to either test or both tests, pursuant to subdivision (a)(4), shall be charged by a
separate warrant or citation that does not include any charge of violating § 55-10-401 that
may arise from the same occurrence.” Id. § 55-10-406(a)(6).

       The defendant’s contention is without merit. Volume six of the technical record
clearly shows that the State charged the defendant with violation of the implied consent law
by a separate citation as required by the statute. Moreover, the record reflects that Trooper
Stanford read the implied consent form to the defendant. Therefore, the defendant’s
contention that he had no notice “that he would be charged with the violation” has no
support in the record. The defendant is not entitled to relief.



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                                    CONCLUSION

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


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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