              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE

                           NOVEMBER 1999 SESSION
                                                              FILED
                                                              February 29, 2000
                                                         Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )                 Appellate Court Clerk
                                               No.M1998-00006-CCA-R3-CD
                                     )     C.C.A. NO. 01C01-9809-CR-00387
              Appellee,              )
                                     )     DAVIDSON COUNTY
VS.                                  )
                                     )     HON. FRANK G. CLEMENT, JR.,
MARCELLA I. MEALER,                  )     JUDGE
                                     )
              Appellant.             )     (DUI; Driving on revoked license)



FOR THE APPELLANT:                         FOR THE APPELLEE:

JUSTIN JOHNSON                               PAUL G. SUMMERS
203 Second Ave. N.                   Attorney General & Reporter
P.O. Box 190582
Nashville, TN 37219-0582             LUCIAN D. GEISE
                                          Asst. Attorney General
                                          425 Fifth Ave., N.
                                          Nashville, TN 37243-0493
                                           VICTOR S. JOHNSON III
                                           District Attorney General
                                           BERNARD MCEVOY
                                           Asst. District Attorney General
                                           Washington Square, Suite 500
                                           222 Second Ave., N.
                                           Nashville, TN 37201




OPINION FILED:____________________


AFFIRMED

JOHN H. PEAY,
Special Judge
                                            OPINION


                 Defendant was indicted for driving on a revoked license (DORL) and driving under the

influence (DUI), third offense. Defendant pled guilty to DORL, and a jury convicted her of DUI, second

offense.1 The trial court then sentenced defendant on the DORL offense to six months in the county jail at

seventypercent followedby six months probation, concurrent with the DUI sentence. For the DUI conviction,

the trial court sentenced defendant to eleven months, twenty-nine days in the county jail, suspended after

service of one hundredfifty days, and eleven months, twenty-nine days probation. The trial court also fined

defendant six hundred dollars ($600) on the DUI offense. O this direct appeal, defendant challenges the
                                                          n

trial court's denial of her request for a continuance, and the sufficiency of the evidence. Upon our review of

the record, we affirm the judgm of the trial court.
                               ent


                                                  FACTS

                 At approximately 2:00 a.m. on March 30, 1997, Officer Dan Whitley was headed toward

Nashville on MurfreesboroRoad. H testified that he had been driving continuously since about 1:30 a.m
                                e                                                                    .,

when defendant pulled out infront of himfrom a parking lot, making a left turn. Officer Whitley had to brake
and swerve to avoid a collision. Defendant completed her turn and proceeded outbound on Murfreesboro
Road. Officer Whitley m a U-turn, turned on his blue lights, and pulled in behind defendant. She pulled
                       ade
over into a paved parking lot and stopped. Officer Whitley stopped behind her at 2:05 a.m.



                 Officer Whitley approachedthedriver's sideof defendant's vehicle. He testified that her face
“was really flushed, and her speech was slurred.” He smelled a strong odor of alcohol from the cab of the

vehicle. When defendant stepped out, she was unsteady and had trouble keeping her balance. According
to Officer Whitley, defendant had also urinated on herself.


                 Defendant attempted to perform two sobriety tests: the walk and turn, and the one-leg

stand. On the walk and turn, she could not keep her balance, missed touching her heel to her toe, stepped

off the line, and raised her arms. On the one-leg stand, defendant put her foot down several times, raised
her arms, and hopped. Defendant was also uncooperative and belligerent, and Officer Whitley smelled a

   1
    Although defendant was indicted for DUI, third offense, she and the State stipulated that her
conviction would be for second offense.

                                                      2
strong odor of alcohol fromher mouth. Officer Whitley concluded that defendant was “highly intoxicated,”

and arrestedher for DUI. He tookdefendant down tothestation, where she refused to take the Breathalyzer
test.


                 Michael Jason Orsbon, who administered Breathalyzer tests, observed defendant at the
station for approximately twenty minutes. He testified that she had been “very uncooperative,” had had
bloodshot eyes, slurred speech, and smelled heavily of alcohol. He testified that, in his opinion, she had

been “very intoxicated.”


                 Defendant testified that she co-owned Lanny's Restaurant and Lounge with her husband,

and that she had been working there since 11:00 the previous morning. She closed up at 10:00 p.m. and
spent the next four hours cleaning. She had two bottles of beer w cleaning, she testified. She denied
                                                                 hile

having urinated on herself, and explained that she kept a damp towel tucked into the front waistband of her

pants while she cleaned. She denied having been intoxicated and explained her inability to perform the
sobriety tests on her brand new shoes and her exhaustion. She testified that she refused to take the

Breathalyzer test because she had read inthenewspaper that the results wereinaccurate. Shealso testified

that she had not pulled out in front of Officer Whitley, but that he had been parked in a nearby lot when she
left her business. Sheacknowledged that Officer Whitley hadbeenprofessional and courteous, and claimed
that she had not been angry, only upset because he had her car towed.



                 Officer Whitley's patrol car was equipped with a tachymeter which recorded when the car
was moving and when it was stopped. Officer Stanton Goad examined the tachygraph generated by the

tachymeter from Officer Whitley's car on the night in question. He testified that, based on the tachygraph,

Officer Whitley's car had stopped twicebetween 1:55a.m and 2:05a.m but that it had been m
                                                      .           .,                     ovingfor two
minutes prior to his stopping defendant. He further testified that defendant's claim that Officer Whitley had

been parked immediately prior to pulling her over was inconsistent with the tachygraph.


                                               ANALYSIS

                 On the morning of trial, defendant filed a motion for continuance becauseOfficer Goadhad
declined to m with her counsel five days earlier, as had been previously arranged, to discuss the
             eet

tachygraph. Officer Goad had explained to defense counsel on the meeting date that, pursuant to

                                                     3
department policy, he could not discuss the tachygraph and defense counsel would have to take it to a

private consultant for interpretation. Defendant contends that this move by the police department was a
surprise and did not give her enough time to hire a private consultant. Accordingly, she argues, the trial court
should have granted her motion for a continuance, and she was prejudiced by the trial court's failure to do

so. The trial court, she contends, abused its discretion in denying her motion, and she is therefore entitled
to a new trial.


                  “A continuance is a matter which rests within the sound discretion of the trial court and its
discretion will not be disturbed absent a clear showing of prejudice to the defendant.” State v. Robinson,

971 S.W.2d 30, 42 (Tenn. Crim. App. 1997). In order to reverse the judgment of the trial judge,

we must be convinced that the defendant “did not have a fair trial and that a different
result would or might reasonably have been reached had there been a different

disposition of the application for a continuance.” Baxter v. State, 503 S.W.2d 226, 230

(Tenn. Crim. App. 1973).


                  Here, defendant wasable to establish at trial through her cross-examinationof Officer Goad

that Officer Whitley had not been driving “continuously” between 1:30 that morning and the tim he pulled
                                                                                              e
defendant over. That is, Officer Goad's testimony based on the tachygraph established that Officer Whitley
had in fact stopped several times during the relevant tim period, including twice between 1:55 and 2:05.
                                                         e

Thus, defendant was able to attack Officer Whitley's credibility through Officer Goad. Defendant has failed

to demonstrate how a private consultant would have further damaged Officer Whitley's credibility, or
otherwise assistedher case. She didnot offer the testimony of such a consultant at her motion for new trial,

although she could have. See Tenn. R. Crim. P. 33(c) (“The court may in its discretion allow testimony in

open court on issue raised in the motion for a new trial.”). Defendant has failed to establish how she was
prejudiced bythe trial court's denial of her motion for a continuance, and this issue is therefore without merit.



                  Defendant also challenges the sufficiency of the evidence supporting her DUI conviction.

When an accused challenges the sufficiency of the convicting evidence, we must review
the evidence in the light most favorable to the prosecution in determining whether “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, 61 L.Ed.2d

                                                       4
560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford

the State the strongest legitimate view of the proof contained in the record as well as all
reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).



                 Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A defendant challenging

the sufficiency of the proof has the burden of illustrating to this Court why the evidence

is insufficient to support the verdict returned by the trier of fact in his or her case. State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).


                 A defendant may be convicted of DUI when it is proven beyond a reasonable doubt that he

or she drove his or her vehicle on any public road, highway or street while under the influence of an
intoxicant. See T.C § 55-10-401(a)(1). The uncontroverted proof inthiscase established that defendant
                   .A.
was driving her vehicle on Murfreesboro Road when Officer Whitley pulled her over. Thus, the only issue

for us to determine is whether the proof is sufficient to support the jury's finding that defendant was driving

while under the influence of an intoxicant.


                 At the time he stopped defendant, Officer Whitley testified, her speech w slurred; she was
                                                                                          as

unsteady on her feet; there was a strong smell of alcohol on her breath; and she had urinated on herself.
She was unable to performtwo field sobrietytests. She was uncooperative and belligerent. Officer Whitley

concluded that defendant was “highly intoxicated.” At the station approximately an hour later, Orsbon
observed the defendant for a significant period of time and formed the same opinion, based on the same

factors. Defendant admitted that she had been drinking prior to leaving her place of business. This evidence
is more than sufficient to support the jury's verdict that defendant was driving while under the influence of
an intoxicant. This issue is without merit.



                                                      5
            The judgment of the trial court is affirmed.




                                                       _________________________________
                                                       JOHNH. PEAY, Special Judge



CONCUR:


______________________________
GARY R. WADE, Presiding judge



______________________________
NOR M
    MA CGEE OG Judge
                 LE,




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