         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     May 11, 2004 Session

                STATE OF TENNESSEE v. ROGER DALE BRYAN

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 15202    Lee Russell, Judge



                      No. M2003-01366-CCA-R3-CD - Filed July 7, 2004


The Appellant, Roger Dale Bryan, was convicted of driving under the influence (DUI), fourth
offense, and driving on a revoked license, third offense, by a Bedford County jury. The verdict
returned by the jury found Bryan guilty of both driving and being in physical control while under the
influence. On appeal, Bryan challenges the legal sufficiency of the proof supporting each basis for
conviction. After review of the record, we find the evidence sufficient for both and affirm the
judgments of conviction, which were merged into a single conviction for DUI.

                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL, and JOHN
EVERETT WILLIAMS, J.J., joined.

Merrilyn Feirman, Nashville, Tennessee; Michael Collins & Curtis Gann, Assistant Public
Defenders, Shelbyville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.
Ryan, Senior Counsel; W. Michael McCown, District Attorney General; and Michael Randles,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        On September 7, 2002, at approximately 7:00 p.m., Officer Tim Fox of the Shelbyville Police
Department received a call that a vehicle was blocking the intersection of Cedar Bluff and Cedar
River Roads. Upon arrival, the officer observed the Appellant “bent over under the hood” of a 1970
Ford pickup truck, which was blocking the entire intersection. After approaching the Appellant, the
officer’s questions were initially ignored; however,
                   As I got his attention, I asked him whose truck it was. He stated in
                   profanity about a female.1 And he stated that she had walked away
                   from the scene. And I asked him who the female was; he said he did
                   not know. I asked him how much he had to drink and he said he
                   hadn’t been drinking. And obviously, he was staggering about and
                   unsteady on his feet, had a strong smell of alcohol on his breath. I
                   asked him once again, I asked him who the truck belonged to. And
                   he stated the female.

        The Appellant performed “very poorly” on three field sobriety tests and, based upon these
tests and the Appellant’s demeanor, he was arrested for DUI. After his arrest, the Appellant became
very hostile and abusive. A second officer at the scene noted that the Appellant “reeked” of alcohol
and that his speech was very slurred. At the jail, the Appellant refused to take a breathalyzer test.
An inspection of the truck revealed that the keys were in the ignition and a “nearly empty” bottle of
Seagrams 7 Crown whiskey was in the driver’s seat. Because the vehicle was causing a traffic
hazard, it was removed from the scene by a tow truck. The officer related that, during the
approximate fifty-minute period that he was at the scene, no one ever approached him claiming any
“connection” with the truck, nor was a woman ever seen walking in the area.

        On January 23, 2003, a Bedford County grand jury returned a three-count indictment against
the Appellant charging him with: (1) violation of the Motor Vehicle Habitual Offenders Act; (2)
DUI, seventh offense; and (3) driving on a revoked license, third offense. The case proceeded to trial
on March 19, 2003, and the Appellant was convicted of DUI, fourth offense, and driving on a
revoked license, third offense. He was subsequently sentenced to concurrent sentences of six years
for the DUI conviction and eleven months and twenty-nine days for the driving on a revoked license
conviction. The Appellant’s motion for new trial was denied, with this appeal following.

                                                       Analysis

         In considering this issue, we apply the rule that, where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing 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, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 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. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).




       1
           The officer later explained that the Appellant actually referred to the female as “some bitch.”

                                                          -2-
       “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). 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). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

         Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”
State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985)). However, as in the case of direct evidence, the weight to be given 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.” Marable
v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

1. Driving Under the Influence

       The Appellant was convicted under Tennessee Code Annotated section 55-10-401(a)(1)
(2003), which provides that it is unlawful for any person to drive or be in physical control of an
automobile on any of the public roads and highways of the state while under the influence of an
intoxicant.2 Thus, the plain language of the statute provides that a person can be found guilty one
of two ways: (1) by driving or (2) by being in physical control of an automobile while intoxicated.

         On appeal, the Appellant does not challenge the sufficiency of the evidence with regard to
whether he was intoxicated or on a public road but, rather, limits his challenge to the issue of
whether the State proved that he was driving or in physical control of the vehicle. He relies upon
State v. Lawrence, 849 S.W.2d 761 (Tenn. 1993), and State v. Butler, 108 S.W.3d 845 (Tenn. 2003),
in support of this proposition.

       Our supreme court, in analyzing whether the Appellant was in physical control of the vehicle,
was persuaded by the reasoning of State v. Smelter, 674 P.2d 690 (Wash. Ct. App. 1984), holding
that “we adopt the reasonably capable of being rendered operable standard in cases where a
defendant contests the element of physical control based upon the alleged inoperability of the
vehicle.” Butler, 108 S.W.3d at 852. In City of Mount Vernon v. Quezada-Avila, 893 P.2d 659, 660-
62 (Wash. Ct. App. 1995), the Washington Court of Appeals revisited “the troublesome issue of
whether, and under what circumstances, a person may be guilty of physical control of an inoperable
vehicle.” The Quezada-Avila Court stated,



       2
           The trial court properly merged the two jury verdicts into one conviction for DUI.

                                                         -3-
       The curious extension of physical control sanctioned by Smelter is only necessary
       where the prosecutor decides to charge a defendant with physical control instead of
       driving while intoxicated (DWI), [Washington Revised Code Annotated section
       46.61.502]. We can perceive no set of facts which would support a conviction for
       physical control of an inoperable vehicle under Smelter which would not also support
       a charge of DWI. How it became customary practice to charge only physical control
       in such cases is unclear.

Id. at 661. In accordance with Quezada-Avila, we conclude that, if an individual is guilty of driving
a motor vehicle under the influence of an intoxicant, the same facts would support a conviction for
being in physical control of a motor vehicle while under the influence. We would note, however,
that the reverse is not true. Obviously, a person may be found to be in physical control of a vehicle
without being found guilty of driving. Physical control simply provides an alternative means of
conviction for DUI when no proof of driving exists. In the present case, both forms of DUI were
charged to the jury. Because we conclude that the evidence was sufficient to sustain the Appellant’s
conviction for driving under the influence, the same facts are, likewise, relevant to the determination
that the Appellant was in physical control of the vehicle.

        The Appellant alleges that the State failed to present any evidence, direct or circumstantial,
that he actually drove the truck. He asserts that all of the evidence presented demonstrates that his
truck was inoperable.

         In Lawrence, 849 S.W.2d at 765, our supreme court adopted a totality of the circumstances
test for determining whether a person was driving or in physical control of a motor vehicle. Butler,
108 S.W.3d at 850. First, we note that this case is distinguishable from Butler, where the motorcycle
in question was located in a Walmart parking lot, not the middle of an intersection as is the case here.
See id. at 847. The evidence is undisputed that the vehicle was located at the intersection of Cedar
Bluff and Cedar River Roads, both public roads. The location of this vehicle is of paramount
significance and gives rise to an inference that it had been driven immediately prior to the arrival of
officers on the scene. The proper focus is not narrowly drawn on the “mechanical condition of the
car when it comes to rest, but upon the status of its occupant and the nature of the authority he or she
exerted over the vehicle in arriving at the place from which, by virtue of its inoperability, it can no
longer move.” Butler, 108 S.W.3d at 852 (citing Smelter, 674 P.2d at 693).3 Accordingly, under the
facts of the present case, the operability of the vehicle is only tangentially relevant to the
determination of whether the Appellant was driving a motor vehicle. See State v. Larriva, 870 P.2d
1160, 1161 (Ariz. Ct. App 1993).


        3
            The Quezada-Avila Court , 893 P.2d at 660, in analyzing this statement, commented that:

       this passage is admittedly confusing. Nevertheless, the [Smelter] court held that the conviction was
       properly based on the fact that the defendant drove the vehicle until it ran out of gas. Smelter, 674
       P.2d at 693. The holding was compelled by the court's efforts to avoid a definition of physical control
       which would “allow an intoxicated driver whose vehicle was rendered inoperable in a collision to
       escape prosecution.” Id.

                                                         -4-
        The officers had the vehicle immediately towed because it was creating a traffic hazard. The
Appellant was clearly exercising some authority over the truck as he had opened the hood and
remained at the scene. No one else was around the truck, and no one appeared within the fifty
minutes that the officers were present. It does appear from the record that the Appellant had the
present physical ability to direct the use or non-use of the vehicle. Although the Appellant told the
officer that “some bitch,” who he did not know, was the owner of the truck, he never asserted that
this person was the driver. Moreover, the keys were in the ignition. The Appellant also relies upon
the fact that no proof of ownership was entered into evidence. Proof of ownership of the vehicle,
while perhaps relevant, is not an element of the crime. Accordingly, we find this argument without
merit.4

        In the absence of any credible proof that this driving might have been done by someone else,
it was reasonable for the jury to infer that it was done by the Appellant. Lawrence, 849 S.W.2d at
766 (citing Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). Obviously, the truck was driven
to the intersection in a functional condition, and the Appellant appeared to be the only person in
close proximity. After review of the record, we conclude that the evidence was legally sufficient to
support a conviction for DUI under either theory that the Appellant was driving or in physical control
of the vehicle. Accordingly, this issue is without merit.

2. Driving on a Revoked License

        The Appellant also challenges the sufficiency of the convicting evidence with regard to his
conviction for driving on a revoked license. Tennessee Code Annotated section 55-50-504(a)(1)
(2003). The Appellant does not contest that the evidence was insufficient to show that his driver
license was in fact revoked at the time of his arrest. Rather, the Appellant’s challenge relies upon
his argument that he was not shown to be driving the vehicle. Having already found that the
evidence was sufficient to support a finding that the Appellant drove his vehicle upon a public road,
we find his argument to be without merit.

                                                  CONCLUSION

       Having found that the evidence was sufficient to support the Appellant’s convictions for DUI
and driving on a revoked license, we affirm the judgments of the Bedford County Circuit Court.




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         4
          At trial, as the officer was informing the jury as to the registration or ownership of the truck, the Appellant
objected upon grounds of hearsay, which was sustained.

                                                          -5-
