State of Tennessee v. Shirea Barber ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 6, 2012
STATE OF TENNESSEE v. SHIREA BARBER
Appeal from the Criminal Court for Shelby County
No. 09-04843 Chris Craft, Judge
No. W2011-00462-CCA-R3-CD - Filed July 12, 2012
The Defendant, Shirea Barber, was convicted by a Shelby County Criminal Court jury of
driving under the influence, a Class A misdemeanor. See T.C.A. § 55-10-401 (2010). The
trial court sentenced the Defendant to eleven months and twenty-nine days, with ten days’
confinement and the remainder on probation. On appeal, the Defendant contends that the
evidence is insufficient to support her conviction. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and A LAN E. G LENN, JJ., joined.
Ted I. Jones, Memphis, Tennessee, for the appellant, Shirea Barber.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Brian Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
A statement of the evidence was submitted to this court pursuant to Tennessee Rule
of Appellate Procedure 24(c) by the consent of the parties. At the trial, Bartlett Police
Officer Story testified that he saw the Defendant’s car stopped in the middle of an
intersection with the headlights on and the engine running. He said that he smelled a strong
odor of an “intoxicant” on her breath, that she was “unsteady on her feet” when she got out
of the car, and that she held on to the car to support herself when she got out of the car. He
said he decided not to conduct further tests when the Defendant almost fell during the
“finger-to-nose” test. He said the Defendant was “clearly intoxicated” because she mumbled
as she spoke, had bloodshot and watery eyes, and had poor coordination.
According to the statement of the evidence, Bartlett Police Officer Gaia’s view “of
the Defendant’s condition matched” Officer Story’s testimony. He said he was forced to
pepper spray the Defendant after her arrest because she became combative and refused to get
into the police cruiser. He said the spray lasted for two seconds.
Bartlett Police Officer Gammon testified that he spoke with the Defendant at the
police station about the evening’s events and that he had her perform “walking and command
tests.” He said the Defendant had poor speech, was disoriented, was unable to stand on her
own, and had bloodshot and watery eyes. He was present when the Defendant admitted that
she had been drinking.
The parties stipulated that the Defendant admitted to each officer that she purchased
four premixed margaritas, which were thirty-six proof by content. Although the Defendant
made various statements about whether she drank a portion of one bottle, multiple bottles,
or all four bottles, three unopened bottles were found in her car. The parties also stipulated
that the State presented one bottle to the officers during their testimony to establish that the
bottle was thirty-six proof and that the manufacturer advertized the “‘whooping’ high proof.”
The Defendant did not testify.
The affidavit of complaint, the presentence report, and a video recording of the
Defendant’s arrest and interview were received as exhibits. According to the statement of
the evidence, the recording showed the Defendant admitting to drinking, her performance on
the sobriety tests, and her repeated requests to call her husband. The recording also showed
the Defendant’s performing walking and command tests at the police station. Our review of
the recording shows twenty segments from a police cruiser. Nine of those segments are
unrelated to the Defendant. The remaining eleven segments are corrupted and incapable of
being reviewed by this court.
The jury found the Defendant guilty. This appeal followed.
On appeal, the Defendant contends that the evidence is insufficient to support her
conviction in light of her being pepper sprayed after her arrest. She argues that because she
was sprayed early in her arrest, the physical conditions she exhibited were the possible results
of the pepper spray rather than an intoxicant. The State contends that the evidence is
sufficient and argues that the officers observed indicators of intoxication before she was
sprayed. We agree with the State.
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Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Williams, 657 S.W.2d 405,
410 (Tenn. 1983). This means that we may not reweigh the evidence but must presume that
the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the
“credibility of the witnesses, the weight to be given to their testimony, and the reconciliation
of conflicts in the proof are matters entrusted to the jury as the trier of fact.” State v. Dotson,
254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Vasques, 221 S.W.3d 514, 521 (Tenn.
2007)); see State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
In Tennessee,
it is unlawful for any person to drive or to be in physical control
of any automobile . . . on any of the public roads and highways
of the state, or on any streets or alleys . . . while under the
influence of any intoxicant . . . that impairs the driver’s ability
to safely operate a motor vehicle by depriving the clearness of
mind and control of [herself] which [s]he would otherwise
possess.
T.C.A. § 55-10-401 (2010). On appeal, the defendant has “a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)).
The jury’s verdict reflects that it rejected the Defendant’s claim that the pepper spray
caused the physical conditions observed by the police officers. Although we are precluded
from viewing the recording from the police cruiser and police station, the recording is not
necessary to the resolution of this appeal. The statement of the evidence shows that Officer
Story saw the Defendant’s car stopped in the middle of an intersection with the headlights
on and the engine running. When he approached the car, he smelled a strong odor of an
intoxicant on the Defendant’s breath, observed her difficulty getting out of her car, and
observed her supporting herself when she got out of the car. The Defendant also failed the
finger-to-nose test, had mumbled speech, bloodshot and watery eyes, and poor coordination.
We note these events occurred before the Defendant was sprayed by Officer Gaia based on
the undisputed officer testimony. The Defendant was sprayed after she was arrested because
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she became combative and refused to get into the police cruiser. We conclude that sufficient
evidence exists to support the Defendant’s conviction.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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