        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      SEPTEMBE R SESSION, 1998

                                                            FILED
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9710-CR-00408
                            )                         December 10, 1998
      Appellee,             )
                                                            Cecil Crowson, Jr.
                            )                               Appellate C ourt Clerk
                            )   SHELBY COUNTY
VS.                         )
                            )   HON. CHRIS CRAFT
GEORGE WASHINGTON,          )   JUDGE
                            )
      Appe llant.           )   (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

A.C. WHARTON                    JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

WA LKER GW INN                  GEORGIA BLYTHE FELNER
Assistant Public Defender       Assistant Attorney General
201 Poplar Avenue               425 Fifth Avenu e North
Memphis, TN 38103               Nashville, TN 37243-0493

                                WILLIAM GIBBONS
                                District Attorney General

                                JULIE MOSLEY
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, George Washington, pursuant to Tennessee Rule of

Appe llate Procedure 3(b), appeals as of right his conviction for driving under the

influence of an intoxic ant. The sole issue we review on appeal is whether the

evidence presented at trial was sufficient to convict Defendant of that offense.

W e conclud e that the e vidence overwh elming ly suppo rts the finding of

Defendant’s guilt, and we therefore affirm his conviction.



       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the find ing by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBe e v. State, 372 S.W.2d 173, 176 (T enn. 1963 );

see also State v. Evans, 838 S .W .2d 18 5, 191 (Ten n. 199 2) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court m ust afford th e State “the

strongest legitimate view of the evidence as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-



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weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimon y, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



      In 1995, the offense of DUI required proof that (a) a person was driving or

in physical control of a vehicle; (b) on any public road, highway, street, or alley,

or on the premises of any shopping center, trailer park, apartment complex, or

other place generally frequented by the public at large; (c) while under the

influence of any intoxic ant, ma rijuana, narcotic drug, or drug producing

stimulating effects on the central nervous system. Tenn. Code Ann. § 55-10-401.

The proof presented by the State at trial clearly fulfills these elements.



      Defe ndan t’s convic tion aro se from police investig ation of a collision

between his vehicle and that of J oe an d Ann ie Burton. Mr. Burton, driver of the

other vehicle, testified first for the State.      He stated that, while head ing

southbound on a four-lane road in Memphis (Third Street), he prepared to make

a left turn onto a cross s treet (W eaver R oad). He moved into the left-hand lane,

turned on his turn signal, and waited for the green light. After the light turned

green, he noticed that a vehicle heading northbound on the same street

attempted to make a left turn onto the cross street from the right-most lane of the

road. Mr. Burton noticed the action of th is vehicle, drive n by De fendan t, because

he was waiting on the no rthbound traffic m oving straight ahe ad before he co uld

execute his left turn.




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       As Mr. Burton waited, he observe d Defe ndant’s ve hicle cros s over the left-

hand lane of northbound traffic, enter the intersection, and collide with the left

side of the front of Mr. Burton ’s car. He stated that although he knew a collision

was inevitable, he co uld no t move his veh icle from Defendant’s path. Mr. Burton

testified that Defendant remained in his car for a few minutes to finish drinking a

beer. Defendant then exited the car an d stated, “I s ure hate you tore u p my ca r.”

Mr. Burton th en walk ed to a sto re to telephone for the police, but the storekeeper

had already c alled. In Mr. Burton’s opinion, Defendant was not “in shape to drive”

due to intoxic ation: h e was “good and h igh”, not “falling down drunk,” but

stagge ring.



       The State next called Mrs. Burton to testify. Mrs. Burton, the pa ssenger,

provided the same description of the accident and also stated that she observed

Defendant drinking a beer after colliding with their car.         She testified that

Defendant staggered when he exited his vehicle and that, based upon her

experience seeing other intoxicated persons, she believed Defendant was drunk.



       Officer Vernon Van Buren of the Memphis Police Department arrived first

at the scen e of the ac cident. Be cause Defendant acted “irate and angry,” the

officer placed h im in the b ack sea t of the patrol car. At that time, Van Buren

smelled a “strong odor of alcohol” coming from Defendant and noticed that he

had been s tumbling . Van B uren the n called fo r a DUI o fficer to condu ct sobriety

tests and later witnessed these tests, all of which Defendant failed to perform

satisfacto rily.




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      Officer Van Buren’s partner, Officer A.W. Rudolph, heard the initial call and

arrived on the scene shortly after Van Buren. Rudolph sat down inside the patrol

car with Defendant and immediately noticed a “strong obvious smell of a lcohol.”

He knew conclusively that the odor was coming from Defendant’s mouth, not

mere ly his clothing.   Officer Rudolph also witnessed Defendan t attemp t to

execute the field sobriety tests, and in his opinion, Defendant performed

unsatisfactorily due to intoxication.



      The final witness for the State was DUI Officer E.W. White, who

admin istered the field sobriety tests. During his testimony, the jury viewed a

videotape of those tests, in which Defendant attemp ted recitatio n of the alp habet,

the finger-to-nose test, the heel-to-toe walk, and the one-legged stand. We have

reviewed the videotape; and we observed that Defendant could not recite the

alphabet in order, hesitated to perform the finger-to-nose test and requested

repetition of instructions, stepped away from the imaginary line several times

during the heel-to-toe walk, and c ould not perform the one-legged stand for any

significant length of time. Officer White testified that Defendant swayed and

weaved when he walked, that his speech was slurred, and that he had a

mode rate odor of alcohol about his person. In the officer’s opinion, Defendant

was impaired as a result of intoxication.



      John Shelton, Defendant’s passenger on the day of the accident and friend

of twenty years, testified for the defense. Shelton stated that Defendant drank

a Coke shortly before the collision, that he did not cross over lanes of traffic, that

he did not smell of alcohol prior to the accident, and that he did not seem to have




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any problem performing the field sobriety tests. The State effectively impeached

Shelton ’s credibility du e to bias b ased u pon his frie ndship with the D efenda nt.



      Based upon the fore going proof pre sented at trial, we find the evidence

clearly sufficient to permit the jury to convict Defendant of driving under the

influence of an intoxicant. The judgment of the trial court is accordingly affirmed.



                                         ____________________________
                                         DAVID H. WELLES, JUDGE



CONCUR:



______________________________
PAUL G. SUMMERS, JUDGE



______________________________
JOE G. RILEY, JUDGE




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