             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                        November 15, 2005 Session

        STATE OF TENNESSEE v. JARROD JOHNSTON SLAUGHTER

                      Direct Appeal from the Circuit Court for Madison County
                                  No. 04-777 Roger Page, Judge



                       No. W2005-00442-CCA-R3-CD - Filed January 25, 2006


The appellant, Jarrod Johnston Slaughter, was convicted by a jury in the Madison County Circuit
Court of driving under the influence (DUI), third offense. He received a sentence of eleven months,
and twenty-nine days, with 208 days to be served in confinement. On appeal, the appellant
challenges the sufficiency of the evidence supporting his conviction and the length of confinement
imposed by the trial court. Upon our review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.
AND J.C. MC LIN , JJ., joined.


Mark L. Agee and Jason C. Scott, Trenton, Tennessee, for the appellant, Jarrod Johnston Slaughter.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James G. Woodall, District Attorney General; Angela Scott, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                                      OPINION

                                             I. Factual Background

        Frank Yalda, an officer with the Jackson Police Department, testified at trial that at
approximately 2:00 or 3:00 a.m. on March 27, 2004, he was sitting in his marked police vehicle in
the parking lot of the Hamilton Hills shopping center.1 At that time, there were no other cars in the


         1
            W e have gleaned the facts from a “Statement of Evidence” which was prepared by the appellant and included
in the record. The record does not reflect that the appellant followed the procedure for preparing a statement of evidence
as outlined in Rule 24(c) and (e) of the Tennessee Rules of Appellate Procedure. See State v. Turner, 914 S.W .2d 951,
                                                                                                            (continued...)
parking lot because the only businesses that were open were “the Fusebox and Jimmy D’s.” The
shopping center was part of Officer Yalda’s patrol area, and he was there because the clubs were
getting ready to close.

        Between 2:15 and 3:15 a.m., Officer Yalda noticed, about fifty to sixty-five feet away from
his vehicle, a green Ford Ranger truck drive over a “grassy, shopping center median thing with a curb
around it.” After witnessing the truck drive over the median, Officer Yalda began driving toward
the truck. By the time Officer Yalda reached the truck, it had traveled ten or twelve feet past the
median and stopped. When Officer Yalda approached the truck, the appellant, who was driving the
truck, rolled down his window. Officer Yalda stood near the vehicle and asked the appellant what
had happened. Officer Yalda opined that the appellant was “not very coherent at the time.” Officer
Yalda asked the appellant for his driver’s license and noticed an odor of alcohol. The appellant had
no difficulty retrieving his driver’s license from his wallet for the officer to examine. Officer Yalda
asked the appellant to exit the truck. As the appellant exited, Officer Yalda noticed that the odor of
alcohol was coming from the appellant, not the truck.

        After getting out of the truck, the appellant took two steps away from the vehicle. Because
of the short distance, Officer Yalda was unable to determine whether the appellant’s balance was
impaired. Officer Yalda asked the appellant if he had been drinking alcoholic beverages, and the
appellant responded that he had consumed four beers; the appellant did not mention the time period
in which the beers were consumed. Officer Yalda noted that the appellant’s speech was “somewhat
slurred,” and his responses were “slightly delayed.”

         Officer Yalda asked the appellant if he had any medical conditions or if he was taking any
medication. The appellant responded negatively to both questions. The officer then administered
three field sobriety tests to the appellant. Officer Yalda noted that the appellant appeared to be able
to comprehend his instructions regarding the field sobriety tests. First, the officer asked the appellant
to recite the alphabet, beginning with the letter A and ending with the letter Z. The appellant replied,
“ABC1234.” Officer Yalda then administered the “straight stance” test. He asked the appellant to
stand with his feet together, holding his hands flat at his sides while closing his eyes and tilting his
head back. Officer Yalda explained that the “straight stance” test is “used to judge a subject’s
balance.” The appellant swayed during his performance of the test. Finally, Officer Yalda asked the
appellant “to perform the straight walk, heel-to-toe, which consists of walking ten steps straight
forward and then turning around and walking ten steps back to where the officer is.” Officer Yalda
testified that, as was his habit on every field sobriety test, he demonstrated what he wanted the
appellant to do. While performing the test, the appellant stumbled on the ninth and tenth steps and
turned in the wrong direction. Officer Yalda stated that field sobriety tests are “pass/fail” tests, and,
in his opinion, the appellant failed all three tests.




        1
         (...continued)
960-61 (Tenn. Crim. App. 1995). Regardless, the State has not objected to the statement of evidence.

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         Officer Yalda concluded, based upon his experience and observations, that the appellant was
under the influence and was too impaired to drive. Accordingly, he arrested the appellant for DUI
and took him to the police station for booking. After they arrived at the station, Officer Yalda asked
the appellant to submit to a blood alcohol test. He read to the appellant an implied consent form,
which contained the penalties for refusing to submit to the blood alcohol test. Officer Yalda stated
that the appellant understood the implied consent form, but he refused to submit to the blood alcohol
test and further refused to sign the implied consent form.

        On cross-examination, Officer Yalda acknowledged that the preliminary hearing transcript
reflected that he had testified that the appellant admitted consuming a “couple of beers.” However,
Officer Yalda did not independently recall his preliminary hearing testimony.

        Officer Yalda asserted that he stopped the appellant because of “his driving performance and
going over the barrier.” However, the officer conceded that at the time of the stop, he did not know
if the appellant had committed a crime. Officer Yalda read his preliminary hearing testimony in
which he stated that the appellant had committed the offense of reckless driving. Thereafter, the
officer stated that with his memory refreshed, he could testify that he stopped the appellant for
reckless driving; however, he did not arrest the appellant for reckless driving. Officer Yalda
explained that he stopped the appellant to determine why the appellant was acting the way he was,
namely why he had driven over the embankment.

     Officer Yalda stated that Officer Kelsey was present at the time the appellant was stopped.
However, Officer Kelsey did not participate in conducting the field sobriety tests.

        Dean Bartel, an expert in field sobriety testing, testified on behalf of the appellant. Bartel
stated that he had previously been a deputy sheriff with the Shelby County Sheriff’s Office and had
been a Sergeant in the Metro DUI Squad, in Shelby County. During his last five years in the DUI
Squad, Bartel worked as a DUI instructor.

       Bartel stated that driving into a curb and the presence of an odor of alcohol are not
necessarily indicators that a driver is impaired; however, he said they could be. Bartel stated that the
National Highway Traffic Safety Administration (NHTSA) and the United States Department of
Transportation (USDOT) have validated and approved three standardized field sobriety tests: the
horizontal gaze nystagmus test, the one leg stand test, and the walk and turn test. Bartel said that
Tennessee uses the manual produced by the NHTSA.

       Bartel stated that field sobriety tests are “not pass/fail.” He stated that the tests contain
“indicators that you look for . . . . If a person makes two or more errors on either test, that is your,
what they call a decision point . . . where you can assume there’s a possibility that the person is
impaired.”

       Bartel testified that the correct name of the “heel to toe test” conducted by Officer Yalda is
the walk and turn test. If given properly, the test is sixty-eight percent accurate in detecting


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impairment; however, if the test is given improperly, the percentage of accuracy is reduced. Bartel
opined that Officer Yalda did not provide accurate instructions for the walk and turn test. Bartel
stated that the walk and turn test has nine indicators of impairment. Based upon Officer Yalda’s
testimony, Bartel concluded that the appellant exhibited only one indicator, an improper turn. Bartel
asserted that one indicator did not suggest that the appellant was impaired.

       Bartel stated that the ABC test is not a standardized test because adequate research has not
been done to verify its accuracy. Nevertheless, the ABC test is listed in the NHTSA manual. The
manual states that the ABC test may be used in determining impairment.

        Based upon the foregoing, the jury found the appellant guilty of DUI. The appellant agreed
to allow the trial court to determine his guilt of DUI, third offense. The trial court found that the
instant conviction was indeed the appellant’s third DUI offense. The trial court imposed a sentence
of eleven months and twenty-nine days and ordered the appellant to serve 208 days of the sentence
in confinement prior to being released on community corrections. On appeal, the appellant
challenges the sufficiency of the evidence supporting his conviction and the length of confinement
imposed by the trial court.

                                                    II. Analysis

                                         A. Sufficiency of the Evidence

        On appeal, a jury conviction removes the presumption of the appellant’s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court
why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

         Tennessee Code Annotated section 55-10-401 (2004) provides:2


         2
            W e note that Tennessee Code Annotated section 55-10-401(a) and (b) provides that it is illegal to operate
a motor vehicle “on the premises of any shopping center” while under the influence of an intoxicant. In the instant case,
the proof is unrefuted that the appellant was driving in the parking lot of a shopping center. Regardless, the indictment
charging the appellant with DUI specifically provided that the appellant drove or physically controlled a vehicle “upon
a public highway and/or an area frequented by the public at large.”

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               (a) It is unlawful for any person to drive or to be in physical control
               of any automobile or other motor driven vehicle on any of the public
               roads and highways of the state, or on any streets or alleys, or while
               on the premises of any shopping center, trailer park or any apartment
               house complex, or any other premises which is generally frequented
               by the public at large, while:

               (1) Under the influence of any intoxicant, marijuana, narcotic drug,
               or drug producing stimulating effects on the central nervous system
               ....

        On appeal, the appellant specifically “contends that the State failed to prove beyond a
reasonable doubt that he was driving or in physical control of a vehicle in an area generally
frequented by the public at large.” Specifically, the petitioner contends that because most of the
businesses in the shopping center were closed, the parking lot was not an area frequented by the
public at the time the offense was committed.

        In the instant case, Officer Yalda testified that the appellant was driving a green Ford Ranger
truck in a shopping center parking lot in a questionable manner. Officer Yalda explained that due
to the hour, most of the businesses in the shopping center were closed. However, the two clubs that
were open were getting ready to close. We note that this court has previously concluded that
“parking lots are premises generally frequented by the public at large.” State v. Steven Frederick
Brinkley, No. M2003-02419-CCA-R3-CD, 2004 WL 2964706, at *6 (Tenn. Crim. App. at Nashville,
Dec. 22, 2004), perm. to appeal denied, (Tenn. 2005). Accordingly, we conclude that the proof
established that the appellant was in an area frequented by the public at large.

        Next, we will address the remaining elements of the offense of DUI. As we noted earlier,
Officer Yalda testified that the appellant was driving a motor vehicle. Further, Officer Yalda stated
that the appellant smelled of alcohol, and he admitted drinking four beers. Additionally, in Officer
Yalda’s opinion, the appellant failed three field sobriety tests. The jury heard the testimony of the
appellant’s expert, Bartel, and obviously chose to accredit the State’s witness as was their
prerogative. Thus, we conclude that the proof at trial was sufficient for a jury to find the appellant
guilty of DUI.

                                           B. Sentencing

        As his final issue, the appellant challenges the length of confinement imposed by the trial
court. Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2003). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in


                                                 -5-
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is
on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately
considered sentencing principles and all relevant facts and circumstances, this court will accord the
trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

        The appellant has failed to include a transcript of the sentencing hearing in the record for our
review. Tennessee Rule of Appellate Procedure 24(b) provides that “the appellant shall have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair,
accurate and complete account of what transpired with respect to those issues that are the bases of
appeal.” Because of this failure, we are unable to review this issue. “In the absence of an adequate
record on appeal, this court must presume that the trial court’s rulings were supported by sufficient
evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also State v. Carl E.
Muncey, No. E2003-02314-CCA-R3-CD, 2004 WL 1488576, at *3 (Tenn. Crim. App. at Knoxville,
July 2, 2004).

                                           III. Conclusion

       Based upon the foregoing, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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