         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 12, 2001

                  STATE OF TENNESSEE v. JESSE R. SCRUGGS

                Direct Appeal from the Criminal Court for Williamson County
                          No. I-999-317   Donald P. Harris, Judge



                      No. M2001-00518-CCA-R3-CD - Filed April 30, 2002


The defendant was convicted of DUI and driving in violation of a Habitual Traffic Offender Order.
Based upon our review of the record, we conclude that there is sufficient evidence corroborating the
defendant’s statement that he was driving. Furthermore, the trial court is presumed to have fulfilled
its role as thirteenth juror when, as in the instant case, the trial court overrules a defendant’s motion
for new trial without comment. The judgment of the trial court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

John H. Henderson, District Public Defender, and Eugene J. Honea, Assistant Public Defender, for
the appellant, Jesse R. Scruggs.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Sharon E. Guffee, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

       The defendant, Jesse R. Scruggs, was indicted in Count One for operating a motor vehicle
while a Habitual Traffic Offender Order was in effect; in Count Two for driving while under the
influence of an intoxicant (“DUI”); and in Count Three for eighth offense DUI. He was tried by a
jury and found guilty of Counts One and Two. The defendant waived a jury trial on Count Three
and following a bench trial, was found guilty of fourth offense DUI. Thereafter, the trial court
dismissed Count Three and entered a judgment for DUI fourth offense in Count Two. The defendant
was sentenced in Count One as a Range II Multiple Offender to four years in the Tennessee
Department of Correction; and in Count Two to a concurrent sentence of eleven months and twenty-
nine days. The sentences were ordered to be served consecutively to the defendant’s sentence for
another conviction in Rutherford County. The defendant filed a motion for new trial which was
denied by the trial court. In this timely appeal, the defendant alleges that the trial court failed to act
as thirteenth juror and erred by denying his motion for new trial.

                                                FACTS

        Deputy Kevin Lovell of the Williamson County Sheriff’s Department testified that he was
dispatched to the scene of a one car accident. He arrived at the accident scene four or five minutes
after receiving the dispatch and observed a car registered to Martha and Robert Scruggs in the ditch
alongside the road. Deputy Lovell did not see anyone in the car or in the area outside the car.
However, based upon the car’s registration information, he was able to get a description of a possible
driver from the dispatcher. He radioed that description to Corporal Jerry Goodin, who began a
search for the driver and/or possible passengers in and around the businesses nearby.

        Shortly thereafter, Corporal Goodin arrived at the scene of the accident with the defendant
in his patrol car. Deputy Lovell testified that the defendant appeared unsteady on his feet, that his
eyes appeared red and watery, that he smelled of alcohol, and that his speech was slurred. He asked
the defendant if it was his car in the ditch and the defendant replied that it was. The defendant
explained to Deputy Lovell that “it was raining, and I slid off the road.” Deputy Lovell asked the
defendant to perform several field sobriety tests, which the defendant performed poorly. According
to Deputy Lovell, the defendant’s attitude began to change from cooperative to belligerent, and he
began to assert that he had not been driving and that there was a woman in the car. Deputy Lovell
placed the defendant under arrest for DUI.

         Corporal Goodin testified that during his search for the driver of the vehicle, he noticed the
defendant using an outside payphone at a Mapco Convenience Store. The Mapco was located
approximately one to two hundred yards from the scene of the accident. Corporal Goodin
approached the defendant and asked him if he had been involved in a nearby car accident. The
defendant responded that he had and appeared unsteady on his feet. Corporal Goodin also noticed
that the defendant emitted an odor of alcohol, which was discernable from three or four feet away.
The defendant did not appear to be injured, and Corporal Goodin asked if the defendant wanted a
ride to the scene of the accident. The defendant indicated that he did and got into Corporal Goodin’s
vehicle.

        Chris Vick, an off-duty Nashville police officer, testified that he was riding with Deputy
Lovell, his brother. While Deputy Lovell was finishing his investigation of the accident scene, Mr.
Vick sat in the police car with the defendant. Mr. Vick testified that the defendant attempted to
engage him in conversation; however, Mr. Vick did not respond. Mr. Vick got out of the police car
but returned when he noticed the defendant trying to get his attention. According to Mr. Vick, the
defendant then told him that he had been drinking. He explained that he had been out with his
girlfriend and was in a hurry to get her home before his wife got home. The defendant asked Mr.
Vick to retrieve Deputy Lovell. When Deputy Lovell asked what the defendant wanted, the
defendant admitted to Deputy Lovell that he was driving the car.

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                                             ANALYSIS

         The defendant alleges that the trial court failed to fulfill its mandatory duty to serve as
thirteenth juror and grant the defendant a new trial. Specifically, he asserts that there is insufficient
evidence to support his convictions because the weight of the evidence preponderates against the
jury’s finding that he was driving the car, a required element of the offense in both counts. We
disagree. Tennessee Rule of Criminal Procedure 33(f) provides that “the trial court may grant a new
trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence.” Our
supreme court has stated that this rule “imposes upon a trial court judge the mandatory duty to serve
as the thirteenth juror in every criminal case, and that approval by the trial judge of the jury’s verdict
as the thirteenth juror is a necessary prerequisite to imposition of a valid judgment.” State v. Carter,
896 S.W.2d 119, 122 (Tenn. 1995). However, this rule does not require an explicit statement on the
record that the trial court performed its duty. Id. Compliance with the rule is presumed when, as
in the instant case, the trial court simply overrules a motion for a new trial without comment. Id.
Furthermore, the accuracy of a trial court’s thirteenth juror determination is not a proper subject of
appellate review because the trial court is in the best position to assess whether the verdict is
supported by the weight and credibility of the evidence. State v. Moats, 906 S.W.2d 431, 435 (Tenn.
1995); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, once the trial court
approves the verdict as the thirteenth juror, this Court’s review is limited to determining the
sufficiency of the evidence. Burlison, 868 S.W.2d at 719.

        When a defendant challenges the sufficiency of the evidence, the standard of review is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the accused guilty of every element of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Tenn.
R. App. P. 13(e). This rule applies to findings of guilt based on direct, as well as circumstantial,
evidence. State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         In the instant case, the defendant alleges that there is insufficient evidence to establish that
he was driving the car. In support of this assertion, he points out that his conviction cannot be
founded solely on his confession but must be supported by corroborating evidence. We agree that
it is a well-established principle of law in this state that a conviction cannot be founded solely upon

                                                   -3-
a defendant's confession, and that, in order to establish the “corpus delicti,” there must be some
corroborating evidence. State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000) (citing Ashby v. State,
139 S.W. 872, 875 (1911)). Literally, corpus delicti means the body of the crime. Two elements
make up the corpus delicti: (1) “that a certain result has been produced, and (2) that the result was
created through criminal agency.” State v. Ervin, 731 S.W.2d 70, 71-72 (Tenn. Crim. App. 1986).
In other words, the State must show that the crime charged has been committed through the criminal
acts of the accused. Kyle v. State, 208 Tenn. 170, 344 S.W.2d 537, 538 (Tenn. 1961). Therefore,
in the instant case, the State was required to show that the defendant operated his automobile while
under the influence of an intoxicant.

         The corpus delicti may be proven by circumstantial evidence, and only slight evidence of the
corpus delicti is required to corroborate a confession and sustain a conviction. Id.; Ervin, 731
S.W.2d at 72. The “evidence is sufficient if . . . it tends to connect the defendant with the
commission of the offense, although the evidence is slight, and entitled, when standing by itself, to
but little consideration.” Ricketts v. State, 241 S.W.2d 604, 606 (1951). In the instant case, the
defendant was located, only minutes after the wreck was reported, using a payphone one to two
hundred yards from the scene of the accident. In addition, he appeared to be intoxicated. The
defendant admitted that he had been in an accident nearby. Moreover, the wrecked car was
registered to Martha and Robert Scruggs, persons with the same surname as the defendant. Such
evidence tends to connect the defendant with the offense and is, therefore, sufficient to corroborate
his confession. This issue is without merit.


                                         CONCLUSION

       Accordingly, the judgment of the trial court is affirmed




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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