      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                   FILED
                         JULY 1998 SESSION
                                                         September 15, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   ) C.C.A. No. 01C01-9709-CC-00406
      Appellee,                    )
                                   ) Bedford County
V.                                 )
                                   ) Honorable Charles Lee, Judge
TRACY LEE POARCH,                  )
                                   ) (Driving Under the Influence and
      Appellant.                   ) Driving as a Habitual Offender)
                                   )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Andrew Jackson Dearing, III           John Knox Walkup
Attorney at Law                       Attorney General & Reporter
117 South Main Street, Suite 101
Shelbyville, TN 37160                 Janis L. Turner
                                      Counsel for the State
                                      425 Fifth Avenue North
                                      Cordell Hull Building
                                      Nashville, TN 37243-0493

                                      W. Michael McCown
                                      District Attorney General

                                      Robert Crigler
                                      Assistant District Attorney General
                                      One Public Square, Suite 100
                                      Shelbyville, TN 37160




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       In December 1996, Tracy Lee Poarch was indicted for operating a motor

vehicle after having been declared a habitual offender in violation of Tennessee

Code Annotated § 55-10-616 (1993); driving under the influence of an intoxicant

(DUI), third offense in violation of Tennessee Code Annotated § 55-10-401

(Supp. 1996); and criminal impersonation in violation of Tennessee Code

Annotated § 39-16-301 (1990).      The appellant entered a plea of guilty to the

criminal impersonation charge, and after a jury trial, he was convicted on the two

remaining charges. The appellant was ordered to serve a sentence of two years

in the Tennessee Department of Correction for violation of the habitual offender

status, nine months in the county jail for the driving under the influence of an

intoxicant conviction, and six months in the county jail for the criminal

impersonation conviction, to run concurrently.



       The appellant’s issues are whether the evidence is sufficient to sustain his

conviction for driving under the influence and driving after having been declared

a habitual offender. The arguments are related and were combined into one.

We affirm.



       At approximately 4:30 a.m. on March 15, 1996, Officer Homer Davis of the

Bedford County Sheriff’s Department received a radio call about a one-vehicle

accident on Highway 130 in the Pleasant Grove community. He and Detective

Robert Filer drove to the scene to investigate. Once on the scene, Officer Davis

saw a car off the road and partially in a ditch. The rear wheels were spinning,

and the car was “in drive.” Also, the headlights were on, and the windshield

wipers were running.



       Detective Filer knocked on the driver’s side window and attempted to

awaken the person slumped over the steering wheel.        At trial, Filer identified



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that person as the appellant. Filer opened the driver’s side door, put the vehicle

in park, turned the ignition off, and removed the appellant from the vehicle.



       Officer Davis and Detective Filer testified that the appellant appeared to

be very intoxicated. He could barely stand and could not perform any of the field

sobriety tests. Detective Filer then arrested the appellant and observed that

appellant for twenty minutes before administering the breathalyzer.

Approximately twenty-eight minutes later, he administered the breathalyzer, and

the results indicated that the appellant had a blood alcohol content of .21.



       After he was arrested, the appellant stated to Detective Filer that he was

“driving around after work having a few.” When asked for his driver’s license, the

appellant responded that he did not have it with him. He identified himself as

“Thomas Ray Poarch” who was born in 1972, but Detective Filer later

determined that “Thomas Ray Poarch” was in fact the appellant’s brother.



       Officer Davis testified that only the appellant was in the vehicle. Officer

Davis stated that he had not seen anyone walking toward the convenience

market from the Pleasant Grove area where the vehicle was found as he and

Detective Filer were traveling to the accident scene. Also, Officer Davis testified

that he was at the scene approximately sixty minutes and did not see anyone

arrive at the scene looking for the appellant.



       Todd Poarch, the appellant’s brother, testified that he was driving the

vehicle that night, not the appellant. He stated that he was driving to his sister’s

residence when he ran the vehicle off the road. He also stated that he had

attempted to get the appellant to help him, but the appellant, who had been

passed out, refused. Todd Poarch testified that he walked several miles to a

convenience market to call his mother. He then waited there for her so she

could take him and his brother home. However, according to Todd Poarch, the



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appellant and the car were gone when he and his mother arrived at the accident

scene at daybreak.



       The appellant’s mother, Bessie Poarch, testified that she received a call

from her son Todd in the early morning hours on March 15, 1996. She testified

that she drove from her home in Cornersville to the Pantry convenience market

in Shelbyville to pick up Todd. They then drove to the accident scene and

arrived there around daybreak. However, the appellant and the car were no

longer there.



       The appellant contends that the evidence is not sufficient to support the

jury verdict. In his brief, the appellant insists that ‘[t]he evidence against the

[appellant] failed to prove beyond a reasonable doubt that the [appellant] was

operating the motor vehicle.” However, he provides no specific proof in support

of his argument.



       The state asserts that the evidence is sufficient to support the appellant’s

conviction for driving under the influence of an intoxicant. It contends that it

“proved beyond a reasonable doubt that the appellant was driving or had

physical control of the vehicle on a public road and that the [appellant] was under

the influence of an intoxicant.” In support of its argument, the state notes that

upon the arrival of Officer Davis and Detective Filer, the car was still in drive and

was still running. Furthermore, the tires were spinning, the headlights were on,

and the windshield wipers were running. In addition, the appellant was found by

the officers in the driver’s seat and slumped over the steering wheel.



       The state further argues that both officers determined that the appellant

was very intoxicated. He was unable to perform any field sobriety tests, but the

breathalyzer that was administered thirty minutes later indicated the appellant’s

blood alcohol content was .21. The appellant admitted that he had been “driving



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around after work having a few.” Also, no other individuals were seen in the

vicinity of the appellant’s vehicle.



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of witness testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



       Tennessee Code Annotated § 55-10-401 (Supp. 1996) states that it is

unlawful for any person to drive or to be in control of any automobile or other

motor vehicle on any public roads and highways while under the influence of an

intoxicant. From our review of the record, the appellant, who had a blood alcohol

level of .21, was found by two officers in the driver’s seat and slumped over the

steering wheel of a car that was still in drive. The tires were spinning, the

headlights were on, and the windshield wipers were running. The appellant



                                         -5-
admitted that he had been “driving around after work having a few,” and no other

individuals were seen in the vicinity of the accident scene or on the road toward

the convenience market. Based on the foregoing, we conclude that a trier of fact

could have found the appellant guilty of driving under the influence of an

intoxicant beyond a reasonable doubt. The evidence is sufficient.



      No dispute exists that the appellant had been declared a habitual motor

vehicle offender. Since we have found the evidence sufficient as to DUI, we find

the evidence equally sufficient as to the other charge.



      We affirm the judgment of the trial court.




                                                    _______________________
                                                    PAUL G. SUMMERS, Judge




CONCUR:




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_____________________________
DAVID G. HAYES, Judge




_____________________________
JERRY L. SMITH, Judge




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