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State v. Scuderi1/12/1999
A jury convicted the defendant of driving under the influence of an intoxicant (DUI), first offense. She was sentenced to eleven months, twenty-nine days at seventy-five percent, all suspended except forty-eight hours in jail. She was also fined $350. In this direct appeal, the defendant challenges the sufficiency of the evidence. Upon our review of the record, we vacate the conviction.
FACTS
No verbatim transcript of the evidence was filed with this Court; however, a Statement of the Evidence was filed. It was approved by the trial Judge, the prosecuting attorney, and defense counsel.
In November 1995, the defendant, her husband, and their nine-year-old daughter accompanied Michael Calloway to dinner. During dinner, the defendant drank three glasses of wine. After dinner, the foursome left the restaurant in Calloway's two-door car. Calloway was driving, the defendant's husband was in the front passenger seat, the defendant was behind her husband, and their child was next to the defendant.
Upon a phoned-in report, Officer Brad Ballard stopped Calloway. Officer Ballard ordered Calloway out of the car and ordered the passengers to remain in the car. Calloway left the car running when he got out. Officer Ballard then administered field sobriety tests to Calloway and eventually arrested him for DUI and child endangerment. Officer Keith Sanders was the back-up officer on the scene.
After about fifteen or twenty minutes of waiting in the car, the defendant told her husband to get out of the car so that she could get out and check on Calloway. Mr. Scuderi refused to do so because of Officer Ballard's orders. The defendant then "started coming toward the front of the vehicle by walking between the front driver seat and the front passenger seat." Upon seeing her movement, Officer Sanders "immediately approached the car." He reached the car "as the defendant scooted into the driver's seat" and told the defendant to step out. He asked her if she had been drinking, and she admitted to drinking three glasses of wine with dinner. Officer Sanders asked her to perform field sobriety tests, but she responded that she could not because of crippling arthritis. Officer Sanders then asked her to recite the alphabet and she complied. Based on the defendant's belligerent attitude, an odor of alcohol, her admission to drinking three glasses of wine, and her further admission of having taken some prescription medication, Officer Sanders arrested the defendant for DUI. At trial Officer Sanders conceded that he had not seen the defendant's hand on the gearshift or her hands on the steering wheel, but testified that he had not known what her intentions were when she climbed into the front seat. He was afraid that, since the car was still running, she could easily have driven away.
The defendant's husband, Carmine Scuderi, testified that his wife "scooted between his seat and the driver's seat and attempted to get out of the car." She had her left foot on the ground and her right foot still in the car when Officer Sanders approached the car.
ANALYSIS
The defendant contends that the evidence is insufficient to prove that she was in "physical control" of the automobile. A defendant challenging the sufficiency of the proof has the burden of illustrating to this Court why the evidence is insufficient to support the verdict returned by the trier of fact in her case. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Upon an appeal challenging the sufficiency of the convicting evidence, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the
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