        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2011

           STATE OF TENNESSEE v. DENNIS WAYNE BREWER

              Direct Appeal from the Circuit Court for Madison County
                        No. 10-586     Roger A. Page, Judge


               No. W2011-00576-CCA-R3-CD - Filed February 1, 2012


The defendant, Dennis Brewer, was convicted by a Madison County jury of DUI and DUI
per se. He then pled guilty to DUI, third offense, a Class A misdemeanor. The trial court
merged the convictions and sentenced him to eleven months and twenty-nine days in the
county jail, with a minimum of nine months to serve prior to release into a rehabilitative
program. The sole issue the defendant raises on appeal is whether the evidence was
sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Paul E. Meyers, II, Assistant Public Defender, for the appellant, Dennis Wayne Brewer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Anna B. Cash, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       At 2:20 a.m. on December 24, 2009, Deputy Paul Capps of the Madison County
Sheriff’s Department was dispatched to the scene of a single vehicle accident on Red Lane
in Madison County. When he arrived approximately fifteen minutes later, he found a pickup
truck resting on its passenger side in a ditch and the defendant asleep inside the vehicle. The
defendant, who had a blood-alcohol content of .23%, smelled strongly of alcohol and failed
the various field sobriety tests he was administered at the scene.

       At the defendant’s trial, Deputy Capps testified that when he arrived, the only person
he observed in the area was the defendant, who was asleep inside the vehicle sitting on the
passenger door. He woke the defendant by standing on top of the truck, holding the door
open, and yelling his name. A heavy odor of alcohol was emanating from the vehicle and
the defendant, when finally roused, appeared groggy. After getting the defendant out of the
vehicle and up on the roadway, Deputy Capps questioned him about the incident, asking him
if he had been drinking. The defendant replied that he “figured he’d had too much,” told
Deputy Capps that the truck belonged to his aunt, and stated that he had been coming “from
right up the road,” as he pointed toward his residence. At no time did the defendant ever
mention that anyone else had been with him in the vehicle.

        Deputy Capps testified that after the defendant failed the series of field sobriety tests
that he administered, he took him into custody, obtained his consent to a blood-alcohol test,
and drove him to the hospital, where his blood was drawn and sent to the Tennessee Bureau
of Investigation (“TBI”) for analysis. Deputy Capps identified the videotape of his encounter
with the defendant, which was admitted into evidence and published to the jury.

        On cross-examination, Deputy Capps said he could not recall if he ever asked the
defendant if he had been driving. He acknowledged that he never saw the defendant driving
or in control of the vehicle and that it was theoretically possible that another individual had
been in the truck and left the scene before his arrival.

       TBI Special Agent Forensic Scientist Bethany McBride, the toxicologist who analyzed
the defendant’s blood, testified that the defendant’s blood-alcohol level was .23%.

       The defendant testified that his last memory of the evening of December 23 was of
drinking vodka and watching football at his home with a man named Jesse Cooper. The next
thing he recalled was “getting woke up” inside his truck. The defendant said that, although
he did not realize it at the time he was arrested, he later pieced together that Cooper must
have been driving the truck that night. He based this conclusion on the fact that he later
found in the truck the hood to Cooper’s jacket, which he recalled having seen attached to the
jacket during the time that Cooper visited with him at his home on the evening of December
23. In addition, he could think of no reason why he would have left the house on his own
that night. The defendant testified that he had confronted Cooper about his role in the
accident and that Cooper “would admit to driving,” except that the defendant had no
knowledge of his current whereabouts and counsel had been unable to locate him.




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                                         ANALYSIS

        The sole issue the defendant raises on appeal is whether the evidence was sufficient
to sustain his conviction. Specifically, he argues that there was insufficient proof that he was
in control of the vehicle. In considering this issue, we apply the rule that where 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
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).

       The DUI statute provides in pertinent part that “[i]t is unlawful for any person to drive
or be in physical control of any automobile or other motor driven vehicle” while under the
influence of any intoxicant or when the alcohol concentration in the person’s blood or breath

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is .08% or more. Tenn. Code Ann. § 55-10-401. In order to determine if a defendant was
in physical control of a vehicle for DUI purposes, the trier of fact looks to the totality of the
circumstances. See State v. Butler, 108 S.W.3d 845, 850 (Tenn. 2003) (citing State v.
Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993)).

        In this case, the State presented proof that the intoxicated defendant was the only
individual at the scene when the officer arrived. Moreover, although the defendant claimed
at trial to have had no memory of the incident, the videotape of his arrest shows that he
answered the officer’s questions about where he had been coming from, what time he had left
his house, and how long he thought he had been at the scene without once mentioning that
anyone else had been in the vehicle with him. We conclude, therefore, that the evidence,
when viewed in the light most favorable to the State, was more than sufficient for the jury to
find that the defendant was in control of the vehicle and, thus, that he was guilty of DUI.

                                      CONCLUSION

        Based on our review, we conclude that the evidence was sufficient to sustain the
defendant’s conviction for DUI, third offense. Accordingly, we affirm the judgment of the
trial court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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