IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1998
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00408
) December 10, 1998
Appellee, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
GEORGE WASHINGTON, ) JUDGE
)
Appe llant. ) (DUI)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
WA LKER GW INN GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue 425 Fifth Avenu e North
Memphis, TN 38103 Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
JULIE MOSLEY
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, George Washington, pursuant to Tennessee Rule of
Appe llate Procedure 3(b), appeals as of right his conviction for driving under the
influence of an intoxic ant. The sole issue we review on appeal is whether the
evidence presented at trial was sufficient to convict Defendant of that offense.
W e conclud e that the e vidence overwh elming ly suppo rts the finding of
Defendant’s guilt, and we therefore affirm his conviction.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the find ing by the trier of fact beyond a
reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by
a trier of fact destroys the presumption of innocence and imposes a presumption
of guilt, a convicted criminal defendant bears the burden of showing that the
evidence was insu fficient. McBe e v. State, 372 S.W.2d 173, 176 (T enn. 1963 );
see also State v. Evans, 838 S .W .2d 18 5, 191 (Ten n. 199 2) (citing State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,
331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v.
State, 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the evidence, an appellate court m ust afford th e State “the
strongest legitimate view of the evidence as well as all rea sonab le and leg itimate
inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-
-2-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at
191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court
find particular conflicts in the trial testimon y, the court must resolve them in favor
of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
In 1995, the offense of DUI required proof that (a) a person was driving or
in physical control of a vehicle; (b) on any public road, highway, street, or alley,
or on the premises of any shopping center, trailer park, apartment complex, or
other place generally frequented by the public at large; (c) while under the
influence of any intoxic ant, ma rijuana, narcotic drug, or drug producing
stimulating effects on the central nervous system. Tenn. Code Ann. § 55-10-401.
The proof presented by the State at trial clearly fulfills these elements.
Defe ndan t’s convic tion aro se from police investig ation of a collision
between his vehicle and that of J oe an d Ann ie Burton. Mr. Burton, driver of the
other vehicle, testified first for the State. He stated that, while head ing
southbound on a four-lane road in Memphis (Third Street), he prepared to make
a left turn onto a cross s treet (W eaver R oad). He moved into the left-hand lane,
turned on his turn signal, and waited for the green light. After the light turned
green, he noticed that a vehicle heading northbound on the same street
attempted to make a left turn onto the cross street from the right-most lane of the
road. Mr. Burton noticed the action of th is vehicle, drive n by De fendan t, because
he was waiting on the no rthbound traffic m oving straight ahe ad before he co uld
execute his left turn.
-3-
As Mr. Burton waited, he observe d Defe ndant’s ve hicle cros s over the left-
hand lane of northbound traffic, enter the intersection, and collide with the left
side of the front of Mr. Burton ’s car. He stated that although he knew a collision
was inevitable, he co uld no t move his veh icle from Defendant’s path. Mr. Burton
testified that Defendant remained in his car for a few minutes to finish drinking a
beer. Defendant then exited the car an d stated, “I s ure hate you tore u p my ca r.”
Mr. Burton th en walk ed to a sto re to telephone for the police, but the storekeeper
had already c alled. In Mr. Burton’s opinion, Defendant was not “in shape to drive”
due to intoxic ation: h e was “good and h igh”, not “falling down drunk,” but
stagge ring.
The State next called Mrs. Burton to testify. Mrs. Burton, the pa ssenger,
provided the same description of the accident and also stated that she observed
Defendant drinking a beer after colliding with their car. She testified that
Defendant staggered when he exited his vehicle and that, based upon her
experience seeing other intoxicated persons, she believed Defendant was drunk.
Officer Vernon Van Buren of the Memphis Police Department arrived first
at the scen e of the ac cident. Be cause Defendant acted “irate and angry,” the
officer placed h im in the b ack sea t of the patrol car. At that time, Van Buren
smelled a “strong odor of alcohol” coming from Defendant and noticed that he
had been s tumbling . Van B uren the n called fo r a DUI o fficer to condu ct sobriety
tests and later witnessed these tests, all of which Defendant failed to perform
satisfacto rily.
-4-
Officer Van Buren’s partner, Officer A.W. Rudolph, heard the initial call and
arrived on the scene shortly after Van Buren. Rudolph sat down inside the patrol
car with Defendant and immediately noticed a “strong obvious smell of a lcohol.”
He knew conclusively that the odor was coming from Defendant’s mouth, not
mere ly his clothing. Officer Rudolph also witnessed Defendan t attemp t to
execute the field sobriety tests, and in his opinion, Defendant performed
unsatisfactorily due to intoxication.
The final witness for the State was DUI Officer E.W. White, who
admin istered the field sobriety tests. During his testimony, the jury viewed a
videotape of those tests, in which Defendant attemp ted recitatio n of the alp habet,
the finger-to-nose test, the heel-to-toe walk, and the one-legged stand. We have
reviewed the videotape; and we observed that Defendant could not recite the
alphabet in order, hesitated to perform the finger-to-nose test and requested
repetition of instructions, stepped away from the imaginary line several times
during the heel-to-toe walk, and c ould not perform the one-legged stand for any
significant length of time. Officer White testified that Defendant swayed and
weaved when he walked, that his speech was slurred, and that he had a
mode rate odor of alcohol about his person. In the officer’s opinion, Defendant
was impaired as a result of intoxication.
John Shelton, Defendant’s passenger on the day of the accident and friend
of twenty years, testified for the defense. Shelton stated that Defendant drank
a Coke shortly before the collision, that he did not cross over lanes of traffic, that
he did not smell of alcohol prior to the accident, and that he did not seem to have
-5-
any problem performing the field sobriety tests. The State effectively impeached
Shelton ’s credibility du e to bias b ased u pon his frie ndship with the D efenda nt.
Based upon the fore going proof pre sented at trial, we find the evidence
clearly sufficient to permit the jury to convict Defendant of driving under the
influence of an intoxicant. The judgment of the trial court is accordingly affirmed.
____________________________
DAVID H. WELLES, JUDGE
CONCUR:
______________________________
PAUL G. SUMMERS, JUDGE
______________________________
JOE G. RILEY, JUDGE
-6-