         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 18, 2001 Session

                   STATE OF TENNESSEE v. JAMES M. BRENT

                Direct Appeal from the Circuit Court for Rutherford County
                          No. M-48451      J. Steve Daniel, Judge



                   No. M2000-02369-CCA-R3-CD - Filed October 26, 2001


A Rutherford County jury convicted the defendant of driving under the influence of an intoxicant.
The trial court sentenced the defendant to eleven months and twenty-nine days to be served in a local
workhouse. The court required the defendant to serve forty-eight hours and allowed the defendant
to serve the remainder of his sentence on probation. The defendant subsequently moved for a new
trial and then amended his motion. The trial court denied his amended motion, and the defendant
appeals this denial, alleging that the evidence presented at trial was insufficient to support his
conviction, that the trial court erred by allowing testimony regarding the defendant’s refusal to
submit to a blood alcohol test, and that the trial court erred by instructing the jury that they could
consider this refusal as evidence of the defendant’s consciousness of guilt. After reviewing the
record and applicable case law, we find that these issues lack merit and therefore affirm the trial
court’s denial of the defendant’s motion for new trial.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID G.
HAYES, J., joined.

V. Michael Fox, Nashville, Tennessee, for appellant, James M. Brent.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Bill
Whitesell, District Attorney General; and Bill Osborne, Assistant District Attorney, for appellee,
State of Tennessee.

                                             OPINION

                                       Factual Background

       On June 12, 1999, a police officer stopped the defendant, James Brent, for speeding. The
defendant was traveling twenty-three (23) miles per hour in excess of the posted speed limit. After
stopping the defendant, the officer noticed an odor of alcohol on the defendant’s person, and the
defendant admitted to having consumed alcohol. The officer then requested that the defendant
perform some field sobriety tests, and the defendant agreed. The defendant failed two standard tests,
the one-legged stand test and the heel to toe test. However, because the defendant complained of
a back ailment, the officer administered two non-standard field sobriety tests, the finger dexterity test
and the numerical countdown test, which the defendant also failed.1 Based on this performance, the
officer arrested the defendant for driving under the influence of an intoxicant. After the officer read
the implied consent form to the defendant, the defendant indicated that he would agree to undergo
a blood alcohol test, and therefore the officer transported him to a hospital. While en route, the
defendant asked the officer if the defendant would be required to pay for the costs associated with
this test. The officer responded that while he did not know the cost, he thought that the defendant
would have to pay the cost if he was found guilty of driving under the influence.2 Based on this
information, the defendant decided not to take the blood alcohol test, and indicated on his implied
consent form that his lack of funds was the reason for his refusal.
         The defendant was subsequently tried and convicted for driving under the influence of an
intoxicant. As noted above, the defendant now brings this appeal, alleging three grounds of error.


                                            Testimony Allowed at Trial

         The defendant first alleges that the trial court erroneously allowed the arresting officer to
testify regarding the defendant’s refusal to submit to a blood alcohol test, as the defendant refused
to take this test only because he was concerned that he might be responsible for the cost of that test.
However, the defendant has waived this issue on appeal because he failed to object to this testimony
at trial. See Tenn. R. App. P. 36(a). State v. Smith, 24 S.W.3d 274 (Tenn. 2000); State v. Duncan,
698 S.W.2d 63, 67 (Tenn.1985). However, even if the issue was not waived, the issue nevertheless
lacks merit.
         An arresting police officer does not have an affirmative duty to inform an arrestee of the costs
associated with a blood alcohol test.3 Rather, an officer is simply prohibited from taking any actions
to frustrate an arrestee’s efforts to undergo such testing. See State v. Livesay, 941 S.W.2d 63, 66
(Tenn. Crim. App. 1996) (acknowledging that “‘there is no duty or obligation on law enforcement
officers to administer a blood test,’ as long as they do not ‘frustrate the reasonable efforts of an
accused to obtain a timely sample of his blood . . . .’”(quoting with approval Brown v. Mun. Court,
86 Cal. App. 3d 357 (1978))); see also Mark Bateman, 1997 WL 779122, at *4 (citing same and



         1
                   The de fendant testified th at he did no t take the one-le gged stand test and passe d all others.

         2
                   The defendan t testified that the officer initially told him that the cost of the test was $230.00 and that
after the defendant indicated that he did not have enou gh cash or a credit card to pay for the test, the officer told him that
he was unsur e of the cost.

         3
                   Moreover, a police officer is not required to transport an arrestee to a hospital for such testing. See
State v. Choate , 667 S.W.2d 111 (Tenn. Crim. App. 1983 ); State v. Mark Bateman, No. 01C01-9608-CC-00377, 1997
WL 7 79122 , at *4 (Tenn . Crim. App . at Nashville, D ec. 17, 19 97).

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affirming a lower court’s conviction of a defendant for DUI, as there was “no evidence in the record
that the officer(s) hampered or obstructed any effort by the defendant to obtain a blood test”).
         In the instant case, there is no evidence that the arresting officer frustrated an attempt by the
defendant to obtain a blood test. The officer simply stated that he was unsure about the cost of such
a test; he did not prevent the defendant from taking the test or from learning about test costs from
hospital administrators. Therefore, we find that this issue lacks merit.


                                        Jury Instruction Error

        The defendant alleges that the trial court erred by instructing the jury that they could consider
the defendant’s refusal to submit to a blood alcohol test as consciousness of guilt, as the defendant
only refused to take the test because the police officer failed to assure him that he would not be
responsible for the cost of the test. However, the defendant has failed to include the court’s jury
instructions in his record for appeal. Without the jury instructions, it is impossible for this court to
determine if the trial court erred when instructing the jury. Because it is the defendant’s
responsibility, as the appellant, to include the information in the record necessary to resolve the
issues presented for appeal, any issue regarding the trial court’s jury instructions is waived. Tenn.
R. App. P. 24; see also State v. Timmy Fulton, No. 02C01-9706-CC-00223, 1998 WL 188532, at
*6 (Tenn. Crim. App. at Jackson, Apr. 21, 1998).


                                     Sufficiency of the Evidence

        The defendant argues that the evidence presented at trial was insufficient to support his
conviction for driving under the influence of an intoxicant. When an accused challenges the
sufficiency of the convicting evidence, this court must review the record to determine if the evidence
adduced during the trial was sufficient "to support the finding of the trier of fact of guilt beyond a
reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated
upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In determining the
sufficiency of the evidence, this court does not re-weigh or reevaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those
drawn by the trier of fact from circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859 (Tenn.
1956). This court is required to afford the state the strongest legitimate view of the evidence
contained in the record, as well as all reasonable and legitimate inferences that may be drawn from
the evidence. State v. Herrod, 754 S.W.2d 627, 632 (Tenn. Crim. App. 1988).
        Questions concerning the credibility of the witnesses, 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, not this
court. 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).
Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption


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of guilt, the accused has the burden on appeal of illustrating why the evidence is insufficient to
support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts
contained in the record and the inferences that may be drawn from the facts are insufficient, as a
matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt.
Matthews, 805 S.W.2d at 780.
         The evidence presented in the instant trial was sufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. The arresting police officer stopped the defendant for
speeding in excess of twenty miles over the posted speed limit. Moreover, the police officer noticed
an odor of alcohol emanating from the defendant, and the defendant admitted to having consumed
alcohol. The police officer also testified that the defendant failed four sobriety tests. This evidence
is sufficient for a rational trier of fact to find that the defendant was driving or in physical control
of his vehicle while under the influence of an intoxicant. See Tenn. Code Ann. § 55-10-401 (1998).
Therefore, we find that the defendant’s challenge of the sufficiency of evidence at trial lacks merit.


                                               Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                          ___________________________________
                                                          JERRY L. SMITH, JUDGE




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