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State v. Willis7/12/1999
A Madison County jury convicted defendant of driving under the influence of an intoxicant. In this appeal as of right, defendant raises two issues for review:
(1) whether there was sufficient evidence to convict him of driving under the influence ; and
(2) whether the trial court erred by failing to require the state to elect which count of the indictment to submit to the jury.
We conclude the evidence was sufficient to support defendant's conviction, and that the trial court committed no reversible error in failing to require an election by the state. The judgment of the trial court is AFFIRMED.
FACTS
On his way to a friend's house to watch football, defendant stopped and bought a small bottle of liquor. He opened the bottle and started to drink the alcohol in route. Defendant lost control of his car and skidded onto the property of A.D. Beard. In the process, he hit Beard's mailbox and car. Beard's son, Joseph Miller, looked out the door in time to see defendant's car pull away with two flat tires .
Miller gave the police a description of the car. Officer Barry Austin spotted the car a short time later throwing sparks from the rim of a flat tire . He also noted damage to the passenger side. Officer Austin stopped the car and determined defendant to be the driver. Miller went to the location of the stop and positively identified the car as the one that left the Beard property.
While talking to defendant, Officer Austin noticed an odor of alcohol and found an empty liquor bottle in the car's front seat. Defendant slurred his speech, appeared unsteady on his feet, and frequently rested against the side of the car. Based upon these observations, the circumstances surrounding the stop, and the evidence found in the car, the officer believed defendant was impaired. He placed defendant under arrest and transported him to the police station. At the station, defendant submitted to a breathalyzer test which registered a blood alcohol level of .10%.
The state charged defendant with DUI in two separate counts of the indictment. It based count one on Tenn. Code Ann. § 55-10-401(a)(1) due to defendant's impairment; and count two on Tenn. Code Ann. § 55-10-401(a)(2) due to the .10% alcohol concentration in his blood. The jury found defendant guilty on count one and not guilty on count two.
SUFFICIENCY OF THE EVIDENCE
Defendant charges there was insufficient evidence to convict him of driving under the influence . Specifically, he avers that the officer's minimal observations of an alcoholic odor, slurred speech, and unsteadiness form the only evidence against him in light of the jury's acquittal on count two of the indictment.
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. Id.; 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.
Defendant contends that the jury's acquittal on count two must be considered in determining defendant's guilt in count one. First, we note that the acquittal on count two is not necessarily in
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