# State v. David Moss > Court of Criminal Appeals of Tennessee · November 18, 1997 URL: https://www.frixlaw.com/law-library/cases/1083209 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** November 18, 1997 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1083209 ## Opinion text IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1997 FILED November 18, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CC-00365 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) LAUDERDALE COUNTY ) V. ) ) HON. JOSEPH H. WALKER, DAVID SCOTT MOSS, ) JUDGE ) Appellant. ) (DUI) FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM DAN DOUGLAS, JR. JOHN KNOX WALKUP 109 North Main Attorney General & Reporter Ripley, TN 38063 CLINTON J. MORGAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 ELIZABETH T. RICE District Attorney General MARK DAVIDSON Assistant District Attorney General 302 Market Street P.O. Box 562 Somerville, TN 38068 OPINION FILED ________________________ CONVICTION AFFIRMED; SENTENCE MODIFIED THOMAS T. WOODALL, JUDGE OPINION The Defe ndan t, David Scott M oss, a ppea ls as of rig ht from his conviction of driving under the influence of an intoxicant (DUI) following a non-jury trial in the Circu it Court of Lauderda le County. In his sole issue on appeal, the Defendant argues that the evidence was insufficient to sustain the conviction. We affirm the judgm ent of the tria l court. When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the eviden ce in th e light m ost favo rable to the pros ection, an y rational trier of fact could have found the essential eleme nts of the crim e beyon d a reas onable doubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979 ). This standard is applicable to findings of guilt predicated upon direct eviden ce, circ ums tantial e vidence or a combination of direct and circumstantial evidenc e. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). O n appe al, the State is entitled to th e strong est legitimate view of the eviden ce an d all inference s therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evid ence is insufficient to support the verdict returned by the trier of fa ct. State v. Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982)). -2- 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 tr ier of fac t, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. On May 28, 1995, at approxim ately 1:30 a.m., Mike Kirkpatrick, a d eputy- sheriff with the La uderda le Coun ty Sheriff’s Department, observed a car weaving back and forth across the center line of Highway 51 at a speed of 60 miles per hour. Kirkpatrick p ulled the c ar over an d aske d the De fendan t to step ou t. Officer Kirkpatrick testified that at this point he could smell alcohol on the Defendant and that his speech was slurred. He also observed six empty beer bottles in the passenger side floor board with “no alcohol left in any of them, you know, except for the suds in the bottom of them.” He then asked the Defendant to perform field sobriety tests. First, Officer Kirkpatrick asked Defendant to recite the alphabet and Defendant was able to do this. Second, Defendant attempted the one-leg stand test, but was unable to keep his balance. He failed this test twice. Defendant told Officer Kirkpatrick that he did not have any phys ical injuries to his legs that would prevent h im from perform ing the test. Third, Defendant performed the heel-to-toe test, during which he could not wa lk hee l-to-toe and h e lost h is balance several tim es. Finally, Officer Kirkpatrick conducted the horizontal gaze nystagmus test on Defen dant. He ob served that De fendant’s eyes were bloodshot and th at “they were ju mpin g” whic h indic ated to the deputy that Defendant had been drinking. The Defendant did not object to the testimony -3- regarding the results of the horizontal gaze nystagmus test, and we note that even if he had, and the evidence were ruled to be inadmissible, that our conclusion as to the sufficiency of the evidence in this case would not change. See State v. Turner, C.C.A. No. 03C01-9604-CC-00151, slip op. at 7, Cocke Coun ty (Tenn. Crim. App., Knoxville, July 9, 1997) (N o Rule 11 a pplication filed); State v. Murphy, C.C.A. No. 01C01-9412-CC-00401, Davidson County (Tenn. Crim. App., Nashville, filed Oct. 6, 1995), perm. to appeal granted (Tenn. 1996). On the basis of De fendant’s driving, his slurred speech, the empty beer bottles, and his performance on the field sobriety tests, Deputy Kirkpatrick concluded that Defendant was under the influence of alcohol and arrested him. Defen dant refu sed to tak e an intox imeter te st. For the defense, Stephanie Spain testified that on May 28, 1995, she met the Defenda nt in Dyersburg , Tennes see so they co uld ride together to Union City, Tennes see for a political fund raising dinner. She met Defendant about 6:00 p.m. at the Holiday Inn in Dyersburg. The dinner started at 7:00 p.m. and she said that no alcoholic beverages were served at the function. After dinner, she and Defendant drove back to Dyersburg and went to a bar called Checkers at approximately 10:30 p.m. She testified that the Defendant drank one beer and poss ibly started a second one while at the bar. They then left and went to the Holiday Inn where Defendant had left his car earlier that evening. A few minutes later they decided to go for a drive towards the river, and she testified that neither of them were drinking. They then went back to the Holiday Inn about 1:00 a.m. where Defendan t got into his c ar to drive to M emph is, and sh e drove h ome to -4- Jackson. Ms. Sp ain testified that in her opinion, Defendant did not appear to be intoxicated . The Defendant testified at trial to the same events as Ms. Spain. Furthermore, he explained that the reason his car was weaving when the officer stopped him was because his steering was out of line. He admitted to the officer that he had drank one or two beers earlier that evening. The Defendant testified that he passed the field sobriety tests, and that the reason he was a little shaky was because he was nervous and it was late at night. Defendant also testified that the reason he refused the intoximeter test was because he was taking allergy medic ine and he was conce rned tha t it would affec t the results of the test. Driving under the influence is defined in part as driving or being in physical control of an automobile on any of the public roads and highways of the State of Tennessee, or on any streets or alleys while under th e influenc e of any into xicant. Tenn. Code Ann. § 55-10-401 (a)(1) (Supp. 19 96). Therefore, the evidence must show that the offender: “(1) was in physical control of an automobile, (2) on a public road within the State of Tennessee, and (3) was under the influence of an intoxicant.” State v. Waddey, C.C.A. No. 01C01-9508-CC-00245, slip op. at 3, W illiamson County, (Tenn. Crim. App., Nashville, July 5, 1996) (Rule 11 application not filed). -5- First, from the testimony at trial, Defendant was clearly in physical control of his car. Officer Kirkpatrick observed the car weaving back and forth, pulled the car over, and Defen dant step ped ou t of the driver’s side. Second, Defendant drove his car on Highway 51, a public road within the State of Tennessee. Third, based on Office r Kirkp atrick’s observations of Defendant and his experience, he determined Defe ndan t to be c learly un der the influen ce of a lcoho l. The trial court could have co nclude d from Defendant’s erratic driving, his slurred speech, the empty beer b ottles in his car , and h is failure to ade quate ly perfo rm two of the fie ld sobrie ty tests, th at the D efend ant wa s und er the in fluenc e of alc ohol. In viewing the evidence in the light most favorable to the State, the evidence was sufficient to support a conviction for DUI. This issue is without merit. Neither party raise d the leng th of sente nce for D efendant’ s conviction of DUI first offense as an issue in this appeal. The trial court sentenced Defendant to serve six (6) months in the county jail with all but forty-eight (48) h ours suspended, and assessed a $350.00 fine. The DUI statutes mandate that the maximum sente nce fo r a DU I convic tion is eleven (11) months and twenty-nine (29) days, with the trial court to determine what portion of the sentence above the manda tory minimum punishme nt must be served prior to a defendant being placed on prob ation. State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996); Tenn. C ode Ann . § 55-10-403 (c). Furthermo re, Section 55-1 0-403(c) requires that D.U.I. offenders be placed on probation for the difference between the tim e actu ally served a nd the m aximum possible senten ce. Accordingly, we affirm the Defendant’s conviction for DUI first offense, but mod ify the D efend ant’s -6- sentence by increasing it to eleven (11) months and twenty-nine (29) days, with all but forty-eight (48) hours suspended. All other portions of the sentence imposed by the trial court shall remain the same. The judgment of the trial cour t, as modified, is accordingly affirmed. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ DAVID G. HAYES, Judge ___________________________________ JERRY L. SMITH, Judge -7- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1083209. Public record. Not legal advice.