          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997          FILED
                                                    July 31, 1997

                                               Cecil W. Crowson
STATE OF TENNESSEE,        )
                                             Appellate Court Clerk
                           )    No. 01C01-9608-CR-00352
      Appellee             )
                           )    DEKALB COUNTY
vs.                        )
                           )    Hon. JOHN TURNBULL, Judge
JIMMY L. REEDER,           )
                           )    (DUI)
      Appellant            )




For the Appellant:              For the Appellee:

HUGH GREEN                      CHARLES W. BURSON
100 Public Square               Attorney General and Reporter
Lebanon, TN 37087
                                PETER M. COUGHLAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM EDWARD GIBSON
                                District Attorney General

                                ANTHONY CRAIGHEAD
                                Asst. District Attorney General
                                145 South Jefferson
                                Cookeville, TN 38501




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                          OPINION



       The appellant, Jimmy L. Reeder, appeals as of right from his conviction

for driving while under the influence. The appellant’s sole issue is whether the

evidence presented at his bench trial in the DeKalb County Circuit Court was

sufficient as a matter of law to support his conviction.



       After reviewing the record, we affirm the trial court’s judgment pursuant to

Rule 20, Tenn. Ct. Crim. App. R.



       On March 10, 1995, the appellant, a commercial truck driver, drove his

eighteen wheeler along his usual route from Los Angeles to Nashville. While en

route, his driving partner became ill requiring the appellant to drive approximately

sixteen hours. He had slept only two hours in a twenty-four hour period. When

he reached Memphis at around 2:00 p.m., he stopped at a restaurant and had a

buffet meal. He then continued on to Nashville. After arriving, the appellant

drove to his home in Smithville, changed clothes and drove to the AmVets

Lodge. He entered the Lodge at about 6:00 p.m. He consumed two or three

beers in the space of one hour and a half. After complaining of exhaustion, the

appellant left the Lodge. On his way home, he grew sleepy and pulled into a

public parking lot. Around midnight, the assistant manager at a local grocery

store saw the appellant slumped in his car. The clerk called the police. When

the two officers arrived, the appellant was lying sideways in his car. There were

both empty and full beer cans laying on the floorboard. The keys were in the

ignition, the car was running, and the vehicle’s headlights were on. Officer

Olson, with the Smithville Police Department, attempted to arouse the appellant.

After several attempts, the appellant staggered out of the car. Both Officers

Olson and Billings stated that the appellant smelled of alcohol. He could not

stand straight, his eyes were bloodshot, and his speech was slurred. The


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appellant admitted to the policemen that he had had a few drinks. Officer Olson

then requested that he take various field sobriety tests. The appellant was

unable to recite the alphabet; when requested to touch his nose, he touched his

cheek. Finally, the officer observed that the appellant was unable to walk a

straight line. At this point, the appellant was placed under arrest. Following his

arrest, the officer requested that the appellant submit to a blood test. The

appellant, a former Marine, refused the test stating that he was afraid of needles.



       At the conclusion of the bench trial, the trial judge found the appellant

guilty of driving under the influence and for violating the implied consent law.

The appellant was sentenced to 11 months and 29 days with all time suspended

except for two days for his DUI conviction. In addition, the court fined him $350

and suspended his driving privileges for one year.



       When reviewing a trial court’s judgment, the appellate court will not disturb

a verdict of guilt unless the facts of the record and inferences which may be

drawn from it are insufficient as a matter of law for a rational trier of fact to find

the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v.

Tuggle, 639 S.W.2d 913,914 (Tenn. 1982). In other words, this court will not

reevaluate or reweigh the evidence brought out at trial. It is presumed that the

judge or jury has resolved all conflicts in the testimony and drawn all reasonable

inferences from the evidence in favor of the state. See State v. Sheffield, 676

S.W.2d 542,547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Since a verdict of

guilt removes the presumption of a defendant’s innocence and replaces it with a

presumption of guilt, the defendant has the burden of proof on the sufficiency of

the evidence at the appellate level. Grace, 493 S.W.2d at 476.




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       The elements of driving under the influence are: (1) driving or being in

physical control of a motor vehicle (2) upon any premises frequented by the

public at large while (3) under the influence of an intoxicant or drug. Tenn. Code

Ann. § 55-10-401 (1993 Repl.); State v. Ray, 563 S.W.2d 454, 459 (Tenn. Crim.

App. 1988). The offense of drunk driving may be established by circumstantial

evidence. State v. Gilbert, 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988). In

this case, the appellant challenges only the finding that he was under the

influence of an intoxicant at the time of his arrest . Based upon careful

consideration of the evidence, the trial court found that the appellant was under

the influence of alcohol. We agree. The evidence in the record before us more

than amply supports the appellant’s conviction for driving under the influence.



       In conclusion, pursuant to Rule 20, Tenn. Ct. Crim. App. R., we hold that

the evidence is sufficient to find the appellant guilty beyond a reasonable doubt,

and we, therefore, affirm the trial court’s judgment.




                                   ____________________________________
                                   DAVID G. HAYES, Judge


CONCUR:



_______________________________
PAUL G. SUMMERS, Judge


_______________________________
JERRY L. SMITH, Judge




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