            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                 STATE OF TENNESSEE v. NOLAND P. O'BOYLE

                  Direct Appeal from the Criminal Court for Sumner County
                       No. 953-1998   Jane W. Wheatcraft, Trial Judge



                    No. M1999-01070-CCA-R3-CD - Decided May 19, 2000



The defendant was convicted of D.U.I. second offense at a jury trial. He now argues a procedural
matter. The trial court accepted defense counsel’s open court acknowledgment of the defendant’s
previous D.U.I. conviction and waiver of his right to have a jury determination for the enhancing
phase. This waiver led the trial court, rather than a jury, to find the defendant guilty of D.U.I. second
offense. The conviction is affirmed.

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

WILLIAMS, J., delivered the opinion of the court, in which SMITH and WEDEMEYER , JJ., joined.

David A. Doyle, District Public Defender, for the appellant, Noland P. O'Boyle.

Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General,
Lawrence Ray Whitley, District Attorney General, Lytle Anthony James, Assistant District Attorney,
for the appellee, State of Tennessee.


                                              OPINION

                                             Introduction

        The defendant, Noland P. O’Boyle, appeals from his conviction of D.U.I. second offense
entered after a jury trial in the Criminal Court of Sumner County. He argues that the evidence was
insufficient because the trial court did not have a jury determine whether the defendant was validly
convicted of D.U.I. first offense but instead accepted defense counsel’s open court acknowledgment
of that fact. After careful review, we affirm the decision of the trial court.

                                                 Facts

        For the purposes of this appeal, we begin our review of the facts after the jury’s verdict of
guilty of D.U.I.
        At that point in a trial for D.U.I. second offense, a trial court, having received the jury’s
determination of guilt, proceeds with the second or “enhancing” phase, the determination of previous
D.U.I. convictions. So beginning, the trial court inquired as to whether there would be a need for
this separate determination to be made by the jury. Defense counsel, in response, stated, “Judge, I
had talked to the Attorney General, and I guess I need to speak with my client just a moment...” At
which time the record indicates a pause in the proceedings for counsel to consult with his client.
Counsel then continued:
        Your honor, I had told the General, as well as Your honor’s secretary, that we were
        just going to acknowledge that there was, in fact, a valid prior first [conviction]. We
        just explained the procedure to [defendant] O’Boyle. We, in fact, are going to do
        that. I had checked the record. There is a waiver and no ill effects that I could find
        at all. Certainly, we acknowledge he is a second offender.

       Afterwards, the judge entered the conviction and sentence for D.U.I. second offense. The
defendant now appeals.

                                              Analysis

         The defendant’s sole issue relates to the above stipulation in the record that the defendant
was, in fact, a “second offender.” Counsel, in this appeal, acknowledges that this exchange occurred;
however, he argues that the trial court erred in simply accepting the stipulation. That is, he argues
that this stipulation, while entered by defense counsel, constituted an involuntary and invalid waiver
of the defendant’s right to a jury. 1 We disagree with this argument and find in the record before us
a voluntary and knowing waiver of the right. Accordingly, we affirm the judgment from the trial
court.

        Technically, the defendant’s argument is characterized as one to the sufficiency of the
evidence. Sufficiency questions are reviewed under our well established standard. This Court
reviews the record to determine if the evidence adduced during the trial was sufficient “to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” See Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. See State v. Brewer, 932 S.W.2d 1, 19
(Tenn. Crim. App. 1996).

         In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute
its inferences for those drawn by the trier of fact from circumstantial evidence. See Liakas v. State,
199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford
the state the strongest legitimate view of the evidence contained in the record as well as all

       1
        A jury is provided by statute for determining the existence of prior D.U.I. convictions for
enhanced sentencing. See Tenn. Code Ann. § 40-35-203(e); State v. Mahoney, 874 S.W.2d 627, 630
(Tenn. Crim. App. 1993).

                                                 -2-
reasonable and legitimate inferences which may be drawn from the evidence. See State v. Tuttle,
914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

        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 trier of fact, not this
Court. Id. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court
stated, “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.”

        Because a verdict of guilty 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 evidence is
insufficient to support the verdict returned by the trier of fact. See State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982); State v. Grace, 493 S.W.2d at 476.

        In this case, the defendant characterizes the evidence as “insufficient” in so much as the state
did not introduce separate evidence of the previous conviction but instead relied upon the
defendant’s “defective” stipulation. We find the evidence sufficient because we do not find that this
stipulation was in any way “defective;” that is, we find that the record clearly shows that it was a
voluntary and knowing relinquishment of the right to a jury. See State v. Bobo, 814 S.W.2d 353,
359 (Tenn. 1991); see also State v. John Thomas Butler, No. 01C01-9308-CC-00257 (Tenn. Crim.
App., filed October 27, 1994, at Nashville).

        In this case, the defendant had just received a jury trial relative to the issue of guilt. The
record, as we have outlined it above, reflects that he conferred with counsel about whether to submit
the issue of prior convictions to the jury or to the court. It seems apparent that he was aware of his
right to a jury and of what was involved if he were to waive a jury. Given these circumstances and
the fact that his counsel announced to the trial court that the defendant agreed to stipulate his
previous conviction and to allow the court to make a determination, we conclude that the record
affirmatively shows that the defendant voluntarily relinquished his right to a jury.

                                           CONCLUSION

        For these reasons, we affirm the decision of the trial court.




                                                  -3-
