          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                         SEPTEMBE R SESSION, 1998        October 30, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                 )     C.C.A. NO. 01C01-9708-CC-00335
                                    )
          Appellee,                 )
                                    )     RUTHERFORD COUNTY
V.                                  )
                                    )
                                    )     HON. J.S. DANIEL, JUDGE
CHAR LES M ADISO N BL ACKM AN, JR. )
                                    )
          Appe llant.               )     (DUI, SECOND OFFENSE)



FOR THE APPELLANT:                      FOR THE APPELLEE:

SAM E . WALL ACE, JR .                  JOHN KNOX WALKUP
227 Se cond A venue, N orth             Attorney General & Reporter
Second Floor
Nashville, TN 37201                     GEORGIA BLYTHE FELNER
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        WILLIAM C. WHITESELL
                                        District Attorney General
                                        Third Floor Judicial Building
                                        Murfreesboro, TN 37130




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       Charles Madis on Bla ckm an, Jr., a ppea ls as of r ight follo wing h is convic tion in

the Rutherford County Criminal Court. Following a trial by jury, the Defendant was

convicted of driving under the influence, second offense. Defendant filed a motion

for judgment of acquittal and for new trial which was denied by the trial court. In this

appe al, Defendant contests the sufficiency of the evidence. We affirm the judgment

of the trial cou rt.



       When an accused challenges the sufficiency of the convicting evidence, the

stand ard is whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyon d a rea sona ble doubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979 ).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 83 5 (Tenn. 19 78).

Because a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insuffic ient to s uppo rt the ve rdict retu rned b y the trie r of fact. State v.

Tug gle, 639 S.W .2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).



       Questions concerning the credibility of the witnes ses, the w eight and value to

be given the evidence, as well as all factual issues raised by th e evidence, are

resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verd ict

                                             -2-
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       As no transcript of the trial was available, the Defendant filed a statement of

the evidence pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure.

Following the trial c ourt’s a pprov al, this statemen t was mad e part of the record for

our review . Tenn. R . App. P. 2 4(f).



       Carrie Blair testified that she was driving on Sou th Lowery Street in Smyrna,

Tennessee, proce eding south in the fast lane on November 27, 1996 when she was

involved in a wreck with the Defendant’s vehicle. She was driving approximately 35

miles per hou r in the lane closest to th e turning lane. Wh ile Blair did not see the

Defe ndan t’s vehicle until after she had been hit, she believed his vehicle was moving

in the turn lane. That vehicle struck her car on the left side, then the back bumper

struck the front bumper of her vehicle. After spinning around and ending up in the

turning lan e, the two vehicles w ere locke d togeth er.



       Blair stated that following the accident the Defendant approached her and

asked if she was alright.      He was “noticeably staggering,” with slurred speech.

Defendant stated that he was g oing to call the police, then walked away from the

scene. When he returned to the scene, a woman was with him and Blair has since

learned that the woman is the Defendant’s wife, Dolores Blackman. Blair witnessed

Mrs. Blackman removing a cup of alcohol from the Defendant’s vehicle.



       On cross-examination, Blair admitted that she was in shock during these

events and that she had not advised the police about anything being removed from

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the Defendant’s vehicle, and that she could not be sure it was a cup which Mrs.

Blackman removed.



       Jeff Dwyer, an officer with the Smyrna Police Department, testified that he was

dispatched to the scene of a traffic accident on South Lowery Street on November

27, 1996. When Dwyer arrived to interview the accident victims, he found the

Defendant to have an “uncoo perative d emea nor and was un steady o n his feet.”

Dwyer further obse rved D efend ant’s eyes to be glassy and red and that he had the

odor of an intoxicant. When Defendant attempted to retrieve his driver’s license from

his wallet, he dropped the wallet to the ground. Dwyer des cribed traffic as heavy at

the time. During his interview of the Defe ndan t, Defe ndan t stated that Bla ir’s vehic le

had stru ck his ow n vehicle.



       Because Dwyer suspected the Defendant was intoxicated , he aske d him to

subm it to seve ral field sobriety tests. First, Defendant was asked to hold one (1) foot

near the bumper of the police car while stan ding on his other fo ot, then to c ount to

thirty (30) slowly. Defendant failed th is test “b ecau se he was u nable to kee p his

balance on one foot and had to put both feet on the ground.” Next, Dwyer asked

Defendant to repeat the alphabe t, which he was un able to su ccessfu lly repeat. In

Dwye r’s opinion, Defendant was confuse d and into xicated. Defen dant ad mitted to

drinking one (1) beer. Upon observation of both vehicles, Dwyer stated that the

dama ge to bo th vehicles was co nsistent w ith Blair’s acc ount of the acciden t.



       During cross-examination, Dwyer re called that he had m ade a pprox imate ly

100 DUI arrests after receiving training in DUI investigation at the police acad emy.

After informing Defendant that he was under arrest, the Defendant became

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argumentative, cursing and pulling away when the handcuffs were placed on him.

After being transported to the Smyrna Police Department, Lieutenant Earl Barnes

attempted to administer the intoximeter test to determine the alcohol content of

Defe ndan t’s blood. Dwyer observed that Defendant either could not or would not

blow hard enough into the machine for a sufficient sample to be taken.



      Lieutenant Earl Barnes testified that he arrived on the scene after Officer

Dwyer, and that he detected an odor of alcohol about the Defendant.                  The

Defe ndan t’s speech was slurred, and after having b een give n two se parate chances

to recite the a lphabe t, the Defe ndant w as still unab le to do so co rrectly. Defendant

was also unable to successfully complete the “foot-to-bumper” test.                 After

transporting the Defendant to the police station, he was calm and cooperative.

When Barnes attempted to administer the intoximeter test, he read the implied

consent law to the D efenda nt. Defen dant m erely prete nded to blow into the tube

which carried the air to the m achine during se veral attem pts to com plete the te st,

with the result of the intoxim eter test being “insufficient sa mple.”



      On cross-examination, Barnes stated that the tube Defendant used was new

and had no obstructions. Barnes did not demonstrate the tests to the Defendant

prior to asking him to complete the tests, and he admitted that the tests administered

were “non-s tandardized .”



      This wa s the con clusion o f the State ’s case-in -chief.



      Dolores Blackman, the Defendant’s wife, testified that she was waiting for her

husband to pick her up after work. He arrived at her office, advising her that he had

                                           -5-
been involved in an accident nearby. She followed her husband outside to the scene

of the ac ciden t, which was o nly about thirty (30) yards from her office.           Mrs.

Blackman did not notice any unusual walk or slurred speech by her husband, nor did

she detec t an od or of alc ohol. Upon arrival at the scene, Blackman stated that she

did not go into the van a nd rem ove any ite ms. After the police arrived on the scene,

the officers attempting to handcuff he r husband were treating him roughly, jerking

his arm becau se it would not ben d in the wa y the police tried to force it to bend.



       Pat Looper, an instructor at the police academy, testified as to the proper

performance of field tests on subjects suspected of intoxication . The thre e (3) tests

which are both standardized and approved by the National Highway Transportation

Safety Administration are: (1) horizontal gaze nystagmus; (2) walk nine (9) steps,

heel to toe, and return; and (3) balance with one (1) foot six (6) inches off the ground

for a perio d of thirty (30) se cond s. On c ross-e xamin ation, L oope r could not rec all

how long these tests had been standardized in this fashion and recollected that he

had used other field sobriety tests himself when working as a State Trooper. He

acknowledged that the use of these non-standardized tests did not invalidate the

Defen dant’s arre st.



       Aletta Kelly, a cousin of the Defe ndant, tes tified that he c ame to pick her up

on the afternoon of November 27, 1996. After picking her up and d riving to his

residence in Antioch, they drove to pick up Mrs. Blackman at work in Smyrna.

During that time period, K elly did not observe the Defendant drink any alcohol nor

did she notice the odor of any alcohol. From her observations o f the D efend ant’s

driving, his appearance, and h is speech, there was nothing to indicate that he was

intoxicated .

                                            -6-
       The Defendant testified that on November 27, 1996, he was off from work and

picked up his cousin, Aletta Kelly, in Dickson. They drove back to Smyrna to pick

up his wife shortly after 4:00 p.m. Defendant stated that he was in the turn lane on

South Lowery Street, moving slowly, and that a van came from his right and struck

his vehicle.    Both vehicles began to spin and then locked bumpers.                When

Defendant went to check on the driver of the o ther ve hicle, C arrie Blair, she admitted

that the ac cident wa s her fau lt.



       Defendant walke d over to his w ife’s offic e to ca ll the police, the n he a nd his

wife returned to the scene. When Officer Dwye r arrived , Defe ndan t reach ed for h is

driver’s license in h is wallet, and several cards fell out of it. Defendant denied

drinking any alcohol or being intoxicated. He further denied that his speech was

slurred or that he s taggere d when he walke d. Wh en ask ed to recite the a lphabe t,

Defendant became amused and laughed. He did submit to the test in which he was

asked to stand on one foot. Because the officer twisted his arm in a “very unnatural

position,” D efenda nt jerked h is arm w hile being handc uffed.



       After arriving at the police station, Defendant agreed to take the intoximeter

test and blew as h ard as h e could th ree (3) se parate times into the mac hine. O n all

three (3) occasions, the machine registered “zero,” showing that he had no alcohol

to drink. On cross-examination, Defendant admitted to advising the police that he

had one (1) beer to drink, but that it was a joke. When questioned as to his telling

an insurance investigator that a red car was involved in the accident, Defendant

admitted that he ha d not told th e police a bout the red car. While he claimed the

damage to the vehicles was different than what the police had testified to, he failed

to bring a picture he had which indicated the actual damages.

                                            -7-
      Charles Blackman, Sr., testified that the Defe ndan t is his son. He went to the

police station on November 27, 1996, and observed his son being given the

intoximeter test. His son appeared to blow as hard as possible into the machine.

The Defendant appeared to be both walking and talking normally, and, in his opinion,

was not imp aired in any way.



      The State called Lieutenant Barnes as a rebuttal witness. Barnes advised that

the Defendant was given the into ximete r test in a secure d area, w hich is clos ed to

the public, and that Charles Blackman, Sr., could not have observed the

admin istration of the test.



       A person is guilty of driving under the influence of an into xicant if h e is driving

or in physical control of a motor vehicle upon a public thoroug hfare while under the

influence of an intoxicant or drug. Tenn. Code Ann. § 55-10-401. This offense may

be proven solely by circumstantial evidence. State v. Gilbert, 751 S.W.2d 454, 459

(Tenn. Crim. App. 1988) (c itations om itted). The Defendant does not contest the fact

that he wa s driving his vehicle while on a public thoroughfare, only that he was under

the influence of an intoxic ant. Taken in the light most favorable to the State, the

record in this case demonstrates that Defendant had an unsteady gait, slurred

speech, odor of alcohol, and glazed eyes. When asked to show the police his

driver’s license, he fumbled and drop ped his w allet. In additio n, he wa s unab le to

succ essfu lly comp lete any o f the field sob riety tests wh ich the police officers

administered. Finally, the Defendant himself admitted to the police officers that he

had been drinking. This is more than sufficient evidence whereby a rational trier of

fact could have found the Defendant guilty beyond a reasonable doubt of driving

under the influence.      There is no requirement tha t any more tha n the above

                                            -8-
testimony is required of the Sta te to prove its case. See State v. Vasser, 870

S.W .2d 543 , 544 (T enn. C rim. App . 1993). T his issue is without m erit.



       W hile not addressed in his motion for new trial, the Defendant suggests that

the State failed to produce “potential exculpatory evidence” by declining to use the

videotape equipm ent which the police cars are equipped with to videotape the

Defe ndan t’s performance on the field sobriety tests. In Brady v. Maryland, 373 U.S.

83, 87, 83 S.C t. 1194 , 10 L.E d.2d 2 15 (19 63), the United States Supr eme Cour t held

that the State has a duty to furnish the accused with any exculpatory evidence

pertaining to either guilt or innocence or to possible punishment upon conviction. In

addition to this issue being waived due to the Defendant’s failure to raise this issue

in his motion for new trial pursuant to Rule 3(e) of the Tennessee Rules o f Appella te

Procedure, the “potential” of exculpa tory evidence does not trigger the mandates of

Brady.   As there was no videotape, there can b e no violatio n of Brady as no

exculpa tory eviden ce was available.



       After reviewing the record and the law in the case sub judice, we affirm the

judgm ent of the tria l court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge




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___________________________________
J. CURWO OD W ITT, JR., Judge




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