         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 24, 2007

                 STATE OF TENNESSEE v. SAMMY MORRISON

                  Direct Appeal from the Circuit Court for Grundy County
                              No. 4169 Buddy Perry, Judge




               No. M2007-00939-CCA-R3-CD          - Filed December 11, 2007


A Grundy County jury convicted the Defendant, Sammy Morrison, of driving under the influence
and resisting arrest. The trial court sentenced him to eleven months, twenty-nine days, with all but
forty hours suspended for the DUI and to five days, suspended, for the resisting arrest conviction.
On appeal, the Defendant argues that there was not sufficient evidence to support his convictions.
After a thorough review of the evidence and applicable law, we affirm the judgments of the trial
court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and J.C. MCLIN , J., joined.

Robert G. Morgan, Jasper, Tennessee; for the Appellant, Sammy Morrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie
E. Price, Assistant Attorney General; J. Michael Taylor, District Attorney General; David O.
McGovern, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                                              I. Facts

       This cases arises from the Defendant’s arrest on April 12, 2005, for driving under the
influence (“DUI”) and resisting arrest. The following evidence was presented at trial:

        Jason Layne, a Gruetli-Laager police officer, testified that on April 12, 2005, he saw a truck
pull out in front of him on Highway 108, and the truck “was swerving from the fog line to the fog
line.” Officer Layne turned on his lights and siren to pull over the driver, but the truck would not
stop. Officer Layne radioed dispatch that he was attempting to stop a vehicle that refused to stop.
The vehicle eventually stopped at a convenience store and pulled into the drive-thru area. Officer
Layne followed the vehicle and waited until it pulled over to the side parking lot.

         At that point, Officer Layne approached the vehicle, and he “observed, between [the
Defendant’s] legs was a quart of beer” and that “the odor, essence of alcohol just engulfed [him].”
When Officer Layne asked the Defendant if he had been drinking, he could “hardly understand a
word [the Defendant] was saying.” Officer Layne said he told the Defendant that he was under
arrest, at which point the Defendant attempted to start his truck and back it away from the officer.
Officer Layne testified he “re[a]ch[ed] in and and grabbed hold of [the Defendant’s] keys to keep
him from taking [off]. [The Defendant] re[a]ch[ed] and grabbed [Officer Layne’s] arm and kind of
pulled [him] into there to [the Defendant].” Then Officer Layne opened the truck door, and the
Defendant let go of him while saying, “I’ll show you something” and reaching downwards towards
a jacket, in which Officer Layne later found a gun. Officer Layne said that he proceeded to spray the
Defendant with his “chemical weapon and grabbed hold of him, and got him out.” At that point, the
beer bottle that was between the Defendant’s legs fell out of the truck and onto the ground. Officer
Layne said Officer McCormick arrived and helped him arrest the Defendant, who was “very
combative . . . hollering, yelling, and . . . may have even been kicking.” After arresting the
Defendant, Officer Layne inventoried the vehicle, revealing the gun wrapped in the jacket. Officer
Layne said that he then took the Defendant to the police station and read the Tennessee Department
of Safety Implied Consent Report to him, after which the Defendant refused the blood alcohol
concentration test. Officer Layne testified that he believed “the Defendant was under the influence
of alcohol that day.”

        On cross examination, Officer Layne admitted that he had stopped drivers for weaving who
were not intoxicated but instead were “sleepy” or “dropped a cigarette, or they’ve reached down or
something with their kids.” Officer Layne said that he observed the Defendant driving for about 100
yards before turning on his blue lights. Officer Layne said he pulled “directly behind” the
Defendant’s automobile at the drive-thru and waited for about two minutes before the Defendant
pulled out of the drive-thru and over to the side parking lot.

         Ken McCormick, a Grundy County police officer, testified that on April 12, 2005, he heard
on the police scanner that Officer Layne was struggling to arrest someone. Upon arriving at Officer
Layne’s location, Officer McCormick saw Officer Layne fighting with the Defendant on the ground.
Officer McCormick testified that he helped handcuff the Defendant and put him into the police
cruiser. Officer McCormick said a freshly broken beer bottle lay on the ground next to the
Defendant’s vehicle, and the Defendant had “a strong smell of an alcoholic beverage about [his]
breath and person.” Moreover, the Defendant “was unsteady on his feet . . . . very belligerent . . .
[and] hollering and cussing” with slurred speech. Officer McCormick stated that the Defendant “was
still unruly, cussing . . . . [and] disorderly” at the jail, and he refused to take a blood test or sign an
implied consent form.

       On cross examination, Officer McCormick testified that, “in most cases” where sobriety is
an issue, common procedure calls for a field sobriety test. Officer McCormick testified that the


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broken bottle of beer looked quart-sized and had a puddle near it that smelled like beer.

       The jury found the Defendant guilty of DUI and resisting arrest, and the Defendant challenges
on appeal the sufficiency of the convicting evidence.

                                             II. Analysis

        The Defendant contends the evidence is insufficient to support his convictions for DUI and
resisting arrest. The State responds that the Defendant’s erratic driving and strong odor of alcohol
support the DUI conviction, and that the Defendant’s combative behavior toward the police officer
support the resisting arrest conviction. 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); see 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)). In determining the
sufficiency of the evidence, this Court should not re-weigh or re-evaluate 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); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the
credibility of the witnesses, the weight and value of 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);
Liakas, 286 S.W.2d at 859. “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); State v. Grace, 493 S.W.2d 474, 479 (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. 1996) (citing Carroll v. State, 370 S.W.2d 523 (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 inferences which may be drawn from the evidence.
Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because
a verdict of guilty against a defendant removes the presumption of innocence and raises a
presumption of guilt, the convicted criminal defendant bears the burden of showing the evidence was
legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000). Importantly, the credibility of the witnesses, the weight given to their testimony, and the


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reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of
fact. Bland, 958 S.W.2d at 659.

        A conviction for DUI requires a “person to drive or to be in physical control of any
automobile or other motor driven vehicle on any of the public roads and highways of the state . . .
while: (1) under the influence of any intoxicant . . . ” T.C.A. § 55-10-401(a)(1) (2005). No blood
alcohol test need be administered for a conviction of driving under the influence. State v. Gilbert,
751 S.W.2d 454, 459 (Tenn. Crim. App. 1988). In this case, a police officer saw the Defendant
driving in an erratic manner, swerving from fog line to fog line. The Defendant did not respond
immediately to the officer’s attempt to stop him. When he eventually responded to the officer, the
Defendant had a particularly strong odor of alcohol about him and a large bottle of beer between his
legs. The Defendant was also combative and slurred his speech so badly the officer could not
understand him. Even though the police officer could not perform field sobriety tests and the
Defendant did not submit to a blood alcohol test, there is sufficient evidence from which a trier of
fact could find that the Defendant was driving under the influence of an intoxicant. As such, the
Defendant is not entitled to relief on this issue.

         The Defendant also claims the jury did not have sufficient evidence to convict him of
resisting arrest. The Tennessee Code defines the crime of resisting arrest as occurring when “a
person . . . intentionally prevent[s] or obstruct[s] anyone known to the person to be a law
enforcement officer . . . from effecting a stop, frisk, halt, arrest, or search of any person, including
the defendant, by using force against the law enforcement officer or another.” T.C.A. § 39-16-602
(2005). In this case, the Defendant did not immediately pull over once the police officer turned on
his blue lights. Instead he continued driving and went to a drive-thru convenience mart. While in
the drive-thru, the Defendant continued to ignore Officer Layne’s request to pull through and over
to the side. When Officer Layne finally encountered the Defendant, he was hostile, he tried to pull
the officer through the car window, and he threatened the officer, even reaching for a concealed gun.
There is sufficient evidence for a rational jury to convict the Defendant of resisting arrest; as such,
the Defendant is not entitled to relief on this issue.

                                           III. Conclusion

        After a thorough review of the record, we find that the evidence sufficiently supports the
Defendant’s convictions for DUI and resisting arrest. Based on the foregoing reasoning and
authorities, we affirm the judgments of the trial court.


                                                        ________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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