        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         AUGUST SESSION, 1998       September 28, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,             )    C.C.A. NO. 01C01-9707-CC-00262
                                )
           Appellee,            )
                                )    COFFEE COUNTY
V.                              )
                                )
                                )    HON. JOHN W. ROLLINS, JUDGE
STARLING JEAN HINER,            )
                                )
           Appe llant.          )    (DUI FIRST OFFENSE)



FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT S. PETERS                     JOHN KNOX WALKUP
SWAFFORD, PETERS & PRIEST            Attorney General & Reporter
100 Firs t Avenu e, S.W .
Win cheste r, TN 37 398              JANIS L. TURNER
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     MICHAEL LAYNE
                                     District Attorney General

                                     STEP HEN W EITZM AN
                                     Assistant District Attorney General
                                     P.O. Box 147
                                     Manchester, TN 37355




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defendant, Starling Jean Hiner, appeals as of right her conviction for first

offense DUI follow ing a jury trial in th e Circuit C ourt of Co ffee Cou nty. Defendant

was subsequently found guilty by the trial court of violation of the Implied Consent

Law. The trial court sentenced Defendant to eleven (11) months, twenty-nine (29)

days with all but four (4) days suspended for the DUI conviction , and the court

revoked her licens e for a pe riod of one (1) year for the violation of the Implied

Consent Law. Defendant raises the following two issues in this appeal: (1) whether

the evidence was sufficient to sustain a conviction for DUI beyond a reasonable

doubt, and (2) wh ether th e arres ting offic er ma de a p roper traffic stop and whether

he had the authority to make that stop. The judgment of the trial court is affirmed.



      On June 29, 1996, Officer Ray Stewart, Constable Calvin McGee and

Lakewood Park security guard Terry Jackson, were all called to the home of Lucy

Grizzle, a reside nt in Lake wood Park, r egard ing a d isturba nce b etwee n Ms. G rizzle

and her neighbor, the Defen dant.       Officer Stew art, Constable M cGee an d Mr.

Jackson testified at trial that upon their arrival at the Grizzle residence at

approximately 5:00 p.m., Defendant appeared to be intoxicated as she was speaking

loudly, slurring her words, and was unsteady on her feet. The officers calmed

everyone down and then asked Defenda nt and her bo yfriend to return to their home.

Officer Stewart instructed Defendant and her boyfriend that sh ould the officers need

to return, that he would arrest them for public intoxication.



      At approximately 9:45 p.m. that same evening, Constable McGee pulled over

a vehicle in Lakewood Park driven by Defendant. Mr. Jackson was in the car with

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Con stable McGee. Constable McGee testified at trial that he had first observed a

vehicle roll through a stop sign at the intersection of Lak ewoo d Drive and R im Fire

Drive and proceed to the left on Rim Fire Drive. Constable McGee then followed the

vehicle for app roxim ately tw o and a half b locks w here h e obs erved it traveling slowly

and swerving to som e extent. W hile following the vehicle he realize d that the car

belonged to either Defendant or her boyfriend although he could not tell who was

driving at the time.



       After initiating the “blue lights” and pulling the vehicle ove r, Constable McGee

asked Defendant, who was in fact the driver, to step out of the car. At this point he

noticed that Defendant smelled of alcohol, was unsteady on her feet and slurred her

speec h. Constable McGee then administered two field sobriety tests, recitation of

the alphabet and the finger to nose test, both of which Defendant failed. C onsta ble

McG ee de termin ed De fenda nt to be unde r the influ ence of alco hol.



       Mr. Jackson, who was riding with Constable McGee, also observed that

Defendant failed the field sobriety tests. He testified that Defendant had been

driving the vehicle very slowly and that it was weaving prior to being stopped. When

Defendant got out of the car, Mr. Jack son no ticed that s he was “barely ab le to stand

up” an d that s he sm elled o f alcoh ol.



       Con stable McGee radioed Officer Stewart when he wa s follow ing De fenda nt’s

car and told him that he was about to stop a car because of a suspected intoxicated

driver. Office r Stew art, wh o was only a few b locks a way, d rove to the sc ene to aid

Con stable McGe e. W hile Officer S tewart ran a record s che ck on the De fenda nt’s

license, he watched Defen dant stag ger towa rds the b ack of he r car and fail to

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succ essfu lly complete the field sobriety tests.        In his opinion, Defendant was

“obvio usly drunk” and “h ad no bus iness doing a ny driving of any kind.” He further

testified that she appeared to be more drunk at 9:45 p.m. than when he had seen

her earlier that day.



      Con stable McGee placed Defendant under arrest, had her vehicle towed, and

took her to the Coffee County Jail. While driving Defendant to jail, she told him that

she had consumed five beers. Also while in the patrol car, a car in front of them was

“driving all over the road” and Defend ant co mm ented to the o fficers th at “[h]e’s

drunke r than I am .”



      Officer Dale B rissey, a correc tional o fficer at th e cou nty jail, testified that when

Defendant arrived at the jail she app eared to be und er the influe nce of an intoxicant.

He noticed that her eyes were bloodshot, her speech was slurred, and that she was

unstea dy on he r feet. Defe ndant re fused to s ubmit to th e intoxim eter test.



      Defendant testified that she was not intoxicated and that she only consumed

one and one-h alf beers prior to being stopped by Constable McGee. She said that

the reason she couldn’t recite the alphabet was because she was too nervous to do

so. However, she claimed that she was not incapable of driving. Her boyfriend,

Ramsey Johnson, testified that Defendant was not drunk and that she consumed

less than two beers that evening. He said that she drove the car because she had

had less to drink that evening than he had. Officer Stewart, Constable McGee, Mr.

Jackson and Ms. G rizzle a ll testified that eve n thou gh La kewo od Pa rk is a private ly

owned and operated development the general public nonetheless travels on the

roads within Lakewood Park on a regular daily basis. Lakewood Park does have a

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gated entrance into the subdivision, but accordin g to tes timon y prese nted a t trial,

essen tially no one is denied access into the su bdivision.



                        I. SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favora ble to the

prosection, any rational trier of fact could have found the esse ntial elem ents of the

crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitle d to the strong est leg itimate view of th e evide nce a nd all in ferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the

evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W.2d 913, 914 (Tenn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).



       Questions concerning the credibility of the witnesses, the weight and valu e to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t




                                            -5-
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W .2d at 476 .



       Moreover, a criminal offense may be established exclusively by circumstantial

evidence. Duch ac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901

S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn.

Crim. App. 1981). However, before an accused may be convicted of a criminal

offense based upon circumstantial evidence alone, the facts and circumstances

"must be so strong and coge nt as to exclude b eyond a rea sonable do ubt every other

reaso nable hypothe sis save g uilt of the defen dant." State v. Crawfo rd, 225 Tenn.

478, 470 S.W .2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of

guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the de fendan t beyond a reaso nable d oubt." Crawford , 470 S.W.2d

at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).



       Tennessee Code An notated section 55-10-401 provides in part as follows:

              (a) It is unlawful for any person to drive or to be in physical
              control of any automobile . . . on any of the public roads
              and highwa ys of the sta te . . . or any other premises
              which is generally frequented by the public at large,
              while: (1) Under the influence of any intoxicant, marijuana,
              narco tic drug, or drug producing stimulating effects on the
              central nervous system;

Tenn. C ode Ann . § 55-10-401 (a)(1).



       First, from the testimony presented at trial, Defendant was clearly in physical

control of the car. The o fficers observed the car weaving on the road and when the

officers stopp ed the vehicle, it was Defe ndan t who e xited the car from the drive r’s

                                            -6-
side. Second, it is clear to us that Defendant was on premises frequented by the

public at large . Defe ndan t’s insufficiency issue is based on the argument that since

the streets of Lakewood Park a re priva tely maintained by the board of trustees for

Lakewood that they are not su bject to the laws of this S tate. We find that the record

establishes that the streets of Lak ewood P ark are frequented by the public at large.

Although there is a gate d entra nce in to the s ubdivis ion, ap paren tly no on e is actu ally

turned away from entering. Acco rding to testimon y, the public enters the area on a

daily basis and three public establishments are even located in the subdivision.

Defense couns el vigorou sly attem pted to es tablish at trial that the roads located

within Lakewood Park are not in fact frequented by the public. By its verdict, the jury

rejected Defe ndan t’s claims and accredited those of the State. Based on a careful

reading of Tennessee Code Annotated section 55-10-401, it is clear that the

legislature intended for that statute to be applicable to private property which the

public freq uents. D efenda nt’s argum ent is me ritless.



       Third, based on the facts presented at trial, the jury could have found

Defendant to be under the influ ence of an in toxican t. Office r Stew art, Co nstab le

McGee, Mr. Jackson and Correction Officer Brissey all testified that Defendant was

intoxicated.    Furthermore, Defendant failed to s ucce ssfully c omp lete the field

sobriety tests. A rational jury could have concluded that Defendant’s appearance,

her unsteadiness on her feet, her slurred sp eech, her failure to adequa tely perform

each of the fie ld sobriety tests, and even her own statements shortly after the arrest

demonstrated that Defen dant wa s unde r the influen ce of an in toxicant. In viewing

the evidence in the light most favorable to the State, the evide nce wa s sufficient to

suppo rt a convictio n for first offens e, DUI. T his issue is without m erit.




                                              -7-
                             II. LEGALITY OF THE STOP



       Defendant argues that the arresting officer, Constable McGee, made an

improper stop of Defendant’s car, and that furthermore, he did no t have the authority

to even make the stop.



       An investigatory stop of a motor vehicle may be made upon a reas onab le

suspicion by a police officer, sup ported b y specific a nd articula ble facts, tha t a

criminal offense has been or is about to be committed. See Terry v. Ohio , 392 U.S.

1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In order to determine the specific and

articula ble facts, this Court must consider the “totality of the circumstanc es.” State

v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citation omitted). Constable McGee

testified at trial that he began following a vehicle after he saw it “roll” through a stop

sign. He then observed the car being driven in an erratic mann er. These fac ts are

sufficient to support a reasonable suspicion that the driver was under the influence

of an intoxic ant. This issue is with out me rit.



       Defendant also argues that the authority of a police officer is different from that

of an elected constable. Specifically, Defendant argues that Constable McGee had

no auth ority to stop her vehicle and arrest her since there is no proo f in the record

that he had graduated from a program required under Tennessee Code Annotated

section 8-10-120 for operation of a patrol car by a constable. There is no showing

in the record that Defendant attempted to elicit any such information from the

Con stable at the time of his test imon y, nor d id Defe ndan t objec t to the C onsta ble’s

authority at the tim e of his testim ony. D efend ant als o did n ot attem pt to rais e this




                                            -8-
issue prior to trial. W e therefo re find that Defen dant h as waive d this issue . See

Tenn . R. App . P. 36(a); T enn. R . Crim. P . 12(f).



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
L.T. LAFFERTY, Special Judge




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