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State v. Neely12/28/1999
A Davidson County jury convicted defendant of driving under the influence (DUI.) The sole issue in this appeal as of right is sufficiency of the convicting evidence. Upon our review of the record, we AFFIRM the judgment of the trial court.
FACTS
In the early morning hours of May 27, 1997, Metro Police Officer Arthur Messmer discovered defendant in the driver's seat of a Dodge minivan in a Waffle House restaurant parking lot. Defendant appeared to be asleep and had half a bottle of beer between his legs. Officer Messmer reached through the van's open window, removed the keys from the ignition and placed them on top of the vehicle. When the officer finally succeeded in awakening defendant, defendant immediately reached for the ignition and tried to start the van.
Officer Messmer smelled the strong odor of alcohol, and defendant's speech was slurred. Exiting the van, defendant moved slowly and deliberately, having to lean on the van for support. At one point, Officer Messmer assisted defendant to ensure he did not fall down.
Defendant failed two field sobriety tests administered by Officer Messmer, and refused a blood alcohol test at the police station. In response to an inquiry about how many drinks he consumed, defendant stated, "the standard answer is two, so I guess I've had two."
Defendant offered no proof at trial.
SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the convicting evidence in this case. Specifically, defendant claims that the state failed to carry its burden of proof by failing to prove beyond a reasonable doubt that the van in which he was asleep was operational at the time of his arrest.
A defendant is guilty of DUI if he drives or is in physical control of an automobile while on any premises "generally frequented by the public at large," while under the influence of an intoxicant. See Tenn. Code Ann. § 55-10-401(a)(1). Guilt of this offense may be proven circumstantially. State v. Harless, 607 S.W.2d 492, 493 (Tenn. Crim. App. 1980).
A. Standard of Review
In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.
Although the evidence of the defendant's guilt is circumstantial in nature, circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, "it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed the crime." Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State
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