         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Brief May 11, 2004

                  STATE OF TENNESSEE v. BRYAN K. MILLER

                      Appeal from the Circuit Court for Franklin County
                            No. 14539     J. Curtis Smith, Judge



                      No. M2003-01434-CCA-R3-CD - Filed July 7, 2004


The Appellant, Bryan K. Miller, appeals his conviction for driving under the influence (DUI), fourth
offense. On appeal, Miller raises the single issue of whether the evidence was sufficient to support
his conviction. Finding the evidence legally sufficient, the judgment is affirmed.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, J.J., joined.

David McGovern, Assistant Public Defender, Jasper, Tennessee, for the Appellant, Bryan K. Miller.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michelle R.
Chapman, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M.
Blount, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On February 17, 2002, the Appellant was stopped by Officer McBee for traveling sixty-three
miles per hour in a thirty-mile an hour zone in the city of Cowan. The officer requested the
Appellant’s driver license, but the Appellant informed him that he didn’t have one, as it had been
revoked. McBee requested that the Appellant step out of the vehicle, and the Appellant complied.
At this point McBee noticed that the Appellant smelled of alcohol. When asked if he had been
drinking, the Appellant responded “that he had a few.” The Appellant was then asked to perform
the standard heel-to-toe and one-leg stand tests, which he failed. A second off-duty officer was
present when the Appellant attempted to perform the two tests and also testified that the Appellant’s
performance of these tests was unsatisfactory. The Appellant was placed under arrest and taken to
jail, where he refused to submit to a Breathalyzer test.
        On May 6, 2002, a Franklin County grand jury returned a seven-count indictment against the
Appellant for: (1) violation of the motor vehicle habitual offender statute; (2) driving on a revoked
license; (3) driving on a revoked license, third offense; (4) driving while intoxicated; (5) driving
while intoxicated, fourth offense; (6) violation of the implied consent law; and (7) reckless driving.
These charges all arose from the events of February 17, 2002. After a jury trial, the Appellant was
convicted of (1) DUI, fourth offense, a class E felony; (2) violation of the motor vehicle habitual
offender statute, a class E felony; and (3) reckless driving. A sentencing hearing was held on
February 27, 2003, at which time the Appellant was sentenced, as a Range II multiple offender, to
concurrent four-year community corrections sentences, with service of eleven months and twenty-
nine days in the county jail. These sentences were ordered to be served concurrently with the
Appellant’s six-month sentence in the county jail for reckless driving. The Appellant’s motion for
new trial was denied, with this appeal following.

                                               Analysis

        On appeal, the Appellant raises the single issue of sufficiency of the evidence. In considering
this issue, we apply the rule that, where the sufficiency of the evidence is challenged, the relevant
question for the reviewing court is “whether, after viewing the evidence in the light most favorable
to the [State], any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also
Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). 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). This court will not reweigh or reevaluate the evidence
presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “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). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

         The Appellant was convicted of DUI, in violation of Tennessee Code Annotated section 55-
10-401(a)(1), which provides that it is unlawful for any person to drive or be in physical control of
an automobile on any public road, while under the influence of an intoxicant. The Appellant only
challenges the sufficiency of proof of the requisite element that he was under the influence of an
intoxicant. Specifically, he asserts that any conclusions drawn by the officers were suspect because
of their lack of training, varying testimony as to the specific details of the Appellant’s performance
of the field sobriety tests, failure to take notes, failure to question the Appellant when and how many


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beers he had consumed, and providing an uneven surface upon which to take the field sobriety tests.
We disagree. As the State asserts, these are issues which go to credibility and weight of the
evidence. These factual considerations were resolved by the trier of fact, and we are without
authority to reweigh or reevaluate the determinations.

        The officer testified that the Appellant was stopped for speeding and was unable to produce
a driver license. Both officers testified that the Appellant smelled of alcohol, and the Appellant
admitted that he had consumed alcohol. Despite variances in the officer’s testimony regarding the
nature and degree of the Appellant’s performance of the field sobriety tests, both testified that his
performance was unsatisfactory. Additionally, the Appellant refused to take a Breathalyzer test.
This evidence, when considered in the light most favorable to the State, is sufficient to support a
finding by a rational jury that the Appellant was driving a vehicle while under the influence of an
intoxicant. This issue is without merit.

                                         CONCLUSION

       We conclude that there was sufficient evidence to support the Appellant’s conviction for
DUI, fourth offense. Accordingly, the judgment of the Franklin County Circuit Court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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