        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                August 30, 2011 Session

                  STATE OF TENNESSEE v. ROBERT WHITE

                Appeal from the Criminal Court for Hamilton County
                       No. 266057    Rebecca J. Stern, Judge




               No. E2010-02238-CCA-R3-CD - Filed November 2, 2011


The defendant, Robert White, appeals his conviction of second offense driving under the
influence, see T.C.A. § 55-10-401(a)(1); -403(a)(1)(A)(iv), arguing that the evidence was
insufficient to support his conviction in light of his acquittal on an alternative count also
charging driving under the influence, see id. § 55-10-401(a)(2). Because the seemingly
inconsistent verdicts in this case do not render the evidence of the defendant’s intoxication
infirm or insufficient, the judgment of the trial court is affirmed.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Lee Davis, Chattanooga, Tennessee, for the appellant, Robert White.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Charlie Minor, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                The defendant’s conviction of driving under the influence (“DUI”) followed
the stop of his vehicle on Lee Highway in Hamilton County just after midnight on April 12,
2007, for speeding. Chattanooga Police Department Officer David Allen Huggins, Jr.,
testified that he was traveling northbound on Lee Highway and “running” “moving radar”
when he observed the defendant’s vehicle traveling southbound on Lee Highway at a speed
of 58 miles per hour in a 40-miles-per-hour speed zone. Officer Huggins activated his
emergency equipment, and the defendant pulled his car over a short distance later. Officer
Huggins testified that he smelled the odor of an alcoholic beverage emanating from the
defendant’s person and, as a result, asked the defendant to exit the vehicle. Once outside the
vehicle, the defendant admitted consuming two beers at a nearby restaurant nearly two hours
before the stop. Officer Huggins then asked the defendant to perform a series of field
sobriety tests.

              The encounter between Officer Huggins was recorded by Officer Huggins’
dashboard camera, and the video recording was played for the jury. Officer Huggins had no
independent recollection of the defendant’s performance on the tests, but he stated that the
video confirmed that the defendant erred during a counting test, swayed once during the
walk-and-turn, and failed to follow directions on the one-legged stand. Based upon these
observations, Officer Huggins concluded that the defendant was too impaired to drive and
asked the defendant to submit to a test to determine his blood alcohol level. The defendant
submitted to the test, and the results showed that the defendant’s blood alcohol level was .10
percent.

              During cross-examination, Officer Huggins acknowledged that the defendant
was cooperative during the traffic stop and during the taking of his blood for blood alcohol
testing more than an hour after the initial stop. He also admitted that nothing about the
defendant’s driving, other than his excessive speed, was erratic. He said that the defendant’s
speech was “[s]omewhat” slurred during the field sobriety test that required him to count
backward from 79 to 46. Officer Huggins conceded that the defendant followed his
instructions and had no problem communicating with him during the encounter. Officer
Huggins described the video recording of the traffic stop as the “best evidence” of the
defendant’s condition on the night of the offense.

               Special Agent and Forensic Toxicologist John W. Harrison performed blood
alcohol testing on a sample of the defendant’s blood he received from the Chattanooga Police
Department. His testing revealed that the defendant’s blood “contain[ed] ethyl alcohol at a
level of point 10 grams percent.”

             At the conclusion of Agent Harrison’s testimony, the State rested, and the
defendant presented the testimony of expert witness Henry Alfred Spiller.

               Mr. Spiller, director of the Kentucky Regional Poison Control Center, testified
that, using information provided to him by the defendant, he was able to extrapolate the
defendant’s blood alcohol level at the time he was stopped by Officer Huggins. He explained
that “just prior to getting in his car he had taken one beer and one shot” which resulted in
28 to 29 grams of alcohol . . . sitting in the stomach” and a blood alcohol level of “point 06
to point 07.” Mr. Spiller said that the defendant’s blood alcohol level would have continued

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to rise during the delay between his arrest and the taking of his blood as the “last amount of
alcohol” was absorbed into his body. Mr. Spiller said that the defendant’s carriage and
demeanor on the video recording confirmed his opinion that the defendant was “at an
unimpaired level” when stopped by Officer Huggins.

              During cross-examination, Mr. Spiller said that the defendant’s statement to
Officer Huggins that he had consumed two beers at approximately 10:30 p.m. could not be
accurate because “[t]here’s not enough alcohol in two beers” to cause the defendant to have
a blood alcohol level of .10 percent. He stated that when confronted with the discrepancy,
the defendant told Mr. Spiller that he had actually consumed five or six beers and one “shot”
of alcohol. Mr. Spiller said that he based his calculations on his assumption that the
defendant was drinking “American beers” in 12 ounce quantities and “an 80 proof spirit.”
Mr. Spiller recalled that the defendant also told him that he had not eaten for several hours
before consuming the alcoholic beverages. Mr. Spiller acknowledged that his calculations
were entirely dependent upon the information provided to him by the defendant.

               At the conclusion of the trial, the jury returned a verdict finding the defendant
guilty in count one of speeding; not guilty in count two of a violation of the light law; guilty
in count three of DUI; and not guilty in count four of driving with a blood alcohol level
greater than .08 percent, or DUI per se.

               In this appeal, the defendant challenges only his conviction of DUI, contending
that the evidence was insufficient to support that conviction because, he says, the jury’s
verdict of not guilty in count four necessarily includes a finding that the State failed to prove
that his blood alcohol content was greater than .08 percent, which finding he claims bars his
conviction of DUI. The State asserts that the evidence unequivocally supports the
defendant’s conviction of DUI and that the seemingly inconsistent verdicts have no effect
on the remaining DUI conviction. We agree with the State.

               We review the defendant’s challenge to the sufficiency of the convicting
evidence mindful that our standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim.
App. 2003). “[D]irect and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
2011).

             When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

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Winters, 137 S.W.3d at 655. 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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               According to the defendant, this case presents an additional limitation on our
review of the sufficiency of the trial evidence because his acquittal on the charge of DUI per
se removes from our evidentiary calculations the results of his blood alcohol test.
Acknowledging that an inconsistency of verdicts generally has no legal effect, the defendant
nevertheless asserts that “this case is different from most in that the only meaningful
evidence of impairment is from the results of the BAC test, an element of the DUI count on
which he was acquitted.” Well-established precedent, however, prevents this court from
speculating as to the jury’s rationale for convicting him of one count of DUI while acquitting
him of another. Our supreme court explained,

              Consistency in verdicts for multiple count indictments is
              unnecessary as each count is a separate indictment. Therein lies
              the essential reasoning. An acquittal on one count cannot be
              considered res judicata to another count even though both counts
              stem from the same criminal transaction. This Court will not
              upset a seemingly inconsistent verdict by speculating as to the
              jury’s reasoning if we are satisfied that the evidence establishes
              guilt of the offense upon which the conviction was returned.

Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973).

                This court considered an argument similar to that presented by the defendant
in State v. Kevin E. Glasgow, No. M2006-02081-CCA-R3-CD (Tenn. Crim. App., Knoxville,
Jan. 23, 2008). In Kevin E. Glasgow, Glasgow was originally charged with DUI and driving
on a revoked license but convicted only of DUI. Arguing that his acquittal on the charge of
driving on a revoked license “reflects that [the jury] did not find that he was driving,”
Glasgow contended that the State had failed to prove that he was driving, an essential
element of DUI. State v. Kevin E. Glasgow, M2006-02081-CCA-R3-CD, slip op. at 7 (Tenn.
Crim. App., Knoxville, Jan. 23, 2008). This court rejected his argument and affirmed his
conviction of DUI.

             Attempting to discern the jury’s motive for acquittal on the charge of driving
with a blood alcohol concentration greater than .08 percent would be nothing more than

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conjecture. Consequently, we reject the argument that the acquittal necessarily renders
infirm the results of the blood alcohol test in this case.

               That said, the proof adduced at trial was sufficient to support the conviction
of driving under the influence. We acknowledge that the video recording of Officer
Huggins’ encounter with the defendant does not indicate that the defendant was intoxicated;
however, other evidence that was inculpative accompanied the video recording. The
defendant smelled of alcohol, admitted having consumed alcohol prior to driving his car, and
performed poorly on field sobriety tests. The defendant told Mr. Spiller that he had drunk
five or six beers and one “shot” of liquor before getting behind the wheel. Although the
defendant quibbled with Officer Huggins’ characterization of the defendant’s speech, gait,
and performance on the field sobriety tests, the jury heard the testimony and viewed the video
recording. In this situation, we review all the evidence applying the usual sufficiency-of-the-
evidence standard of review, see Tenn. R. App. P. 13(e); Jackson, 443 U.S. at 307; Winters,
137 S.W.3d at 654-55, and we do not reweigh the video evidence to determine whether it
“was necessarily more reliable than the testimony of the witnesses testifying on behalf of the
State,” see State v. Teddy Ray Mitchell,      S.W.3d. , , No. E2008-02672-SC-R11-CD,
slip op. at 10 (Tenn. Mar. 21, 2011).

              In addition to this evidence, blood alcohol testing established that the
defendant’s blood alcohol level at the time of testing was .10 percent. This evidence
supports the jury’s conclusion that the defendant was driving while “[u]nder the influence
of an[] intoxicant . . . that impair[ed] [his] ability to safely operate a motor vehicle by
depriving [him] of the clearness of mind and control of himself which he would otherwise
possess.” See T.C.A. § 55-10-401(a)(1).

              Accordingly, the judgment of the trial court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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