                                                                                      05/06/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 2, 2019

                  STATE OF TENNESSEE v. JACOB SMITH

                 Appeal from the Circuit Court for Madison County
                          No. 17-438 Kyle Atkins, Judge
                     ___________________________________

                          No. W2018-01630-CCA-R3-CD
                      ___________________________________


The Defendant, Jacob Smith, was convicted of driving under the influence of an
intoxicant (“DUI”) and leaving the scene of an accident. He received an effective
sentence of eleven months and twenty-nine days suspended after five days of
incarceration. On appeal, the Defendant challenges the sufficiency of the evidence to
support his DUI conviction. Upon review of the record and applicable law, we affirm the
trial court’s judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

Lloyd R. Tatum (on appeal) and G.W. Sherrod III (at trial), Henderson, Tennessee, for
the Appellant, Jacob Smith.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and April Knight, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                      OPINION

                            FACTUAL BACKGROUND

       On November 6, 2017, Mr. Ricky White and Mrs. Linda White awoke at
approximately 4:00 a.m. to the sound of a vehicle crashing into their home. When they
ran to the front door to see what had caused the sound, they discovered that they were
unable to open the front door. When she was able to open the door, Mrs. White saw the
Defendant standing outside with “a gash on his head.” The Defendant apologized, asked
them not to call the police, and assured them that he would pay for the damage. Mrs.
White testified that she told the Defendant that she planned to call the police.

       Mrs. White returned inside to call 9-1-1, and Mr. White went inside to get a jacket.
When they went back outside, the Defendant was gone. At trial, Mrs. White testified that
she did not see anyone other than the Defendant outside. Mrs. White stated that there
was approximately $70,000 of damage to her house. On cross-examination, she stated
that her insurance covered the damages and that although she did have to pay a
deductible of $1,000, she was later reimbursed for that amount.

       Mr. White’s testimony was consistent with his wife’s testimony. Mr. White said
that he went outside through the carport door and spoke with the Defendant for
approximately five to ten minutes. The Defendant asked him not to call the police and
offered to pay for the damage.

        Madison County Sheriff’s Deputy Dale Baker was the first officer to arrive on the
scene. He saw a black, four-door car sitting in the corner of the brick house. Deputy
Baker said that the Whites were the only people there when he arrived. Deputy Baker
recalled that Mr. White described the man who had wrecked the car into the house. Mr.
White described him as a white male, approximately six feet tall, clean cut, light brown
hair, and he had a gash on his forehead.

       Deputy Baker stated that the driver’s side airbag was the only airbag that had
deployed and that the only indention on the windshield was also on the driver’s side.
While Deputy Baker was conducting an inventory search of the vehicle, he found
paperwork with the Defendant’s name and address on it. Deputy Baker asked another
officer, Deputy William Holbrook, to go to the address on the paperwork.

       Deputy Holbrook went to the address given to him by Deputy Baker. When he
arrived, he observed a light on in the front of the house. The light was then turned off,
and he believed he saw someone run from the back of the house. He then knocked on the
door, and a teenage girl answered the door. While he was talking to her, Ms. Tiffani
Cronin, the Defendant’s fiancée, came to the door and told him that the Defendant was
“hiding inside the residence.” She led him to the Defendant. Deputy Holbrook noted
that the Defendant had a laceration on his forehead. Deputy Holbrook smelled the odor
of alcohol on the Defendant.

      Deputy Holbrook stated that the Defendant immediately told him that his cousin
had been driving the car because his cousin was the designated driver that night. Deputy
Holbrook said the Defendant told him that he had consumed a twelve-pack of beer.
                                           -2-
Deputy Holbrook stated that over the course of his conversation with the Defendant, the
Defendant’s story changed several times. At first, the Defendant told Deputy Holbrook
that “it was just him and his cousin driving” in the car. Later, the Defendant told Deputy
Holbrook that there were four people in the vehicle, that his cousin was the driver, and
that his cousin swerved to avoid hitting two deer and crashed into a house. Deputy
Holbrook said the Defendant had “bloodshot[,] red, glossy,” and “watery” eyes and
smelled of alcohol. The Defendant refused to do a field sobriety test and told him, “I’m
too f****ng drunk for this.” Deputy Holbrook admitted that he did not order a blood
alcohol test or a breathalyzer to test the Defendant’s blood alcohol content because he
believed that Deputy Baker was going to order the test.

       Ms. Rose Gogel, one of the Whites’ neighbors, also testified for the State. While
she was sleeping, a loud noise woke her. She and her husband looked outside in an effort
to discover what had happened. She could not see anything because it was still dark
outside. She later discovered that her mailbox had been hit. Two or three days later, the
Defendant and two women stopped at her house while the mailbox was being replaced.
Ms. Gogel stated that the Defendant apologized and admitted to hitting her mailbox. She
recalled that the Defendant admitted to drinking too much alcohol on the night of the
accident.

       Ms. Jasmine Ross, at friend of Ms. Cronin, testified on behalf of the Defendant.
Ms. Ross was at the Defendant and Ms. Cronin’s house on the night of the wreck. At
some point in the night, Ms. Cronin woke her up and told her that they needed to search
for a car that was in a ditch. Ms. Ross and Ms. Cronin left the house to look for the car.
They discovered that the car was not in a ditch. When they found the car, police officers
were already there. They did not stop; instead, they returned to the house. Ms. Ross
recalled that police officers were on the porch when they returned to the house. Ms.
Ross’s fourteen-year-old niece was also on the porch when they returned. Ms. Ross
remembered that three patrol cars and five or six officers were present at the house and
that the Defendant was interacting with the police officers. She saw one of the officers
shining a flashlight in the Defendant’s face. The officer also had the Defendant walk.
Ms. Ross believed that the Defendant was performing a field sobriety test. She admitted
that she could not hear the conversation between the officer and the Defendant. On
cross-examination, she stated that she could not see if the Defendant was staggering
while he walked.

      Ms. Michelle Julian, Ms. Cronin’s mother, was spending the weekend at the
Defendant and her daughter’s house. She testified that the Defendant left the house in
Ms. Cronin’s car earlier in the evening to go watch a game with his friend. Ms. Julian,
Ms. Cronin, and Ms. Ross remained at the house with the children and fell asleep before
the Defendant returned. At some point in the night, the Defendant woke Ms. Cronin and
                                          -3-
informed her that he had “run the car off the road.” Ms. Julian went with Ms. Cronin and
Ms. Ross to look for the car. When they realized that the Defendant had not crashed into
a ditch, they returned to the house.

       Ms. Julian recalled seeing two police officers at the house when they returned,
although she did not interact with either officer. She observed the officers shining a light
in the Defendant’s face and requesting that the Defendant “put his hands out and walk[].”
Ms. Julian admitted that she could not hear the conversation between the officers and the
Defendant. On cross-examination, Ms. Julian clarified that when they left the house, the
Defendant was there with the children.

       Ms. Cronin testified that the Defendant woke her and told her that he had driven
the car into a ditch. She left to go check on the car with Ms. Julian and Ms. Ross. She
saw a police officer on the porch when she returned. She clarified that when she first
arrived there were two police officers present and that a third police officer arrived later.
An officer asked if the Defendant was inside, and she informed him that he was. She
observed the officers interact with the Defendant. She recalled the officers asking the
Defendant questions about “what had happened, things of that nature, and then went on to
perform a field sobriety test.” She stated that she did not hear the Defendant make a
comment about consuming a twelve-pack of beer.

       On cross-examination, Ms. Cronin stated that when the Defendant returned to the
house, he had a cut on his forehead that was bleeding. She testified that the Defendant
did not smell of alcohol or act like he was inebriated. Instead, she believed that he acted
as though he were in shock. She never heard the Defendant mention a cousin. Ms.
Cronin was with the Defendant a few days later when he offered to pay one of the
homeowners for her mailbox.

       The jury found the Defendant guilty of DUI and leaving the scene of an accident.
The trial court sentenced the Defendant to concurrent sentences of eleven months and
twenty-nine days for DUI and thirty days for leaving the scene of an accident. The trial
court ordered the Defendant to serve five days incarcerated and the remainder of his
sentence on probation. The Defendant filed a motion for a new trial, which the trial court
denied. The Defendant now appeals.

                                       ANALYSIS

      The Defendant maintains that the evidence is insufficient to support his DUI
conviction. The standard for appellate review in determining the sufficiency of the
evidence is “‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have the essential elements of the crime
                                            -4-
beyond a reasonable doubt.’” State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A defendant “must demonstrate that no
reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt” in order to obtain relief on a claim for insufficient evidence. State v.
Perrier, 536 S.W.3d 388, 408 (Tenn. 2017). Further, because a jury conviction removes
a defendant’s presumption of innocence and “replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted defendant,” who must
demonstrate that the evidence is insufficient support the jury’s verdict. Id.

       Appellate courts “will not substitute our own inferences drawn from the evidence
for those drawn by the jury, nor will we reweigh or re-evaluate the evidence.” Id. (citing
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)). The determination of “‘[t]he
credibility of witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the proof are matters entrusted to the jury as the trier of fact.’” Dorantes, 331
S.W.3d at 379 (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).

       Tennessee Code Annotated section 55-10-401(1) provides:

       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 apartment house complex, or any
       other premises that is generally frequented by the public at large, while:

       (1) Under the influence of any intoxicant, marijuana, controlled substance,
       controlled substance analogue, drug, substance affecting the central nervous
       system, or combination thereof that impairs the driver's ability to safely
       operate a motor vehicle by depriving the driver of the clearness of mind and
       control of oneself that the driver would otherwise possess.

       The Defendant maintains that the evidence presented at trial is not sufficient to
support his DUI conviction. He argues that the absence of blood alcohol tests and proof
about the timing of his conversation with Deputy Holbrook support reversing his
conviction. The Defendant asserts that the “odor of alcohol, alone, is insufficient to
establish even probable cause for arrest for intoxication.” See State v. Bell, 429 S.W.3d
524, 536 (Tenn. 2014). The Defendant argues that if the odor of alcohol is insufficient to
establish probable cause for an arrest, then likewise it is insufficient to support his
conviction. The Defendant claims that Deputy Holbrook’s “conclusions about the
defendant’s sobriety appear to be made solely upon the basis of the defendant’s odor of
alcohol” and that Deputy Holbrook’s testimony was the only evidence that he was
intoxicated.
                                            -5-
       The evidence presented at trial established that the Defendant crashed his car into
the Whites’ home and then fled the scene when they informed him that they were calling
the police. Deputy Holbrook testified that the Defendant admitted to drinking a twelve-
pack of beer that night. Further, Deputy Holbrook stated that the Defendant appeared to
be intoxicated. The Defendant smelled of alcohol and had “bloodshot[,] red, glossy
eyes.” He declined to perform any field sobriety tests, asserting that he was too
intoxicated to do so. Ms. Gogel testified that a few days after the wreck, the Defendant
stopped by her house and apologized for knocking over her mailbox. She said that the
Defendant told her he had drunk too much that night, and he offered to pay for the
damaged mailbox. Viewing the evidence in the light most favorable to the State, we
conclude that the evidence presented at trial was sufficient to support the DUI conviction.

                                    CONCLUSION

      Based on the foregoing, we affirm the judgments of the trial court.




                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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