State v. Starling Jean Hiner ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 September 28, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CC-00262
)
Appellee, )
) COFFEE COUNTY
V. )
)
) HON. JOHN W. ROLLINS, JUDGE
STARLING JEAN HINER, )
)
Appe llant. ) (DUI FIRST OFFENSE)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS JOHN KNOX WALKUP
SWAFFORD, PETERS & PRIEST Attorney General & Reporter
100 Firs t Avenu e, S.W .
Win cheste r, TN 37 398 JANIS L. TURNER
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
MICHAEL LAYNE
District Attorney General
STEP HEN W EITZM AN
Assistant District Attorney General
P.O. Box 147
Manchester, TN 37355
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Starling Jean Hiner, appeals as of right her conviction for first
offense DUI follow ing a jury trial in th e Circuit C ourt of Co ffee Cou nty. Defendant
was subsequently found guilty by the trial court of violation of the Implied Consent
Law. The trial court sentenced Defendant to eleven (11) months, twenty-nine (29)
days with all but four (4) days suspended for the DUI conviction , and the court
revoked her licens e for a pe riod of one (1) year for the violation of the Implied
Consent Law. Defendant raises the following two issues in this appeal: (1) whether
the evidence was sufficient to sustain a conviction for DUI beyond a reasonable
doubt, and (2) wh ether th e arres ting offic er ma de a p roper traffic stop and whether
he had the authority to make that stop. The judgment of the trial court is affirmed.
On June 29, 1996, Officer Ray Stewart, Constable Calvin McGee and
Lakewood Park security guard Terry Jackson, were all called to the home of Lucy
Grizzle, a reside nt in Lake wood Park, r egard ing a d isturba nce b etwee n Ms. G rizzle
and her neighbor, the Defen dant. Officer Stew art, Constable M cGee an d Mr.
Jackson testified at trial that upon their arrival at the Grizzle residence at
approximately 5:00 p.m., Defendant appeared to be intoxicated as she was speaking
loudly, slurring her words, and was unsteady on her feet. The officers calmed
everyone down and then asked Defenda nt and her bo yfriend to return to their home.
Officer Stewart instructed Defendant and her boyfriend that sh ould the officers need
to return, that he would arrest them for public intoxication.
At approximately 9:45 p.m. that same evening, Constable McGee pulled over
a vehicle in Lakewood Park driven by Defendant. Mr. Jackson was in the car with
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Con stable McGee. Constable McGee testified at trial that he had first observed a
vehicle roll through a stop sign at the intersection of Lak ewoo d Drive and R im Fire
Drive and proceed to the left on Rim Fire Drive. Constable McGee then followed the
vehicle for app roxim ately tw o and a half b locks w here h e obs erved it traveling slowly
and swerving to som e extent. W hile following the vehicle he realize d that the car
belonged to either Defendant or her boyfriend although he could not tell who was
driving at the time.
After initiating the “blue lights” and pulling the vehicle ove r, Constable McGee
asked Defendant, who was in fact the driver, to step out of the car. At this point he
noticed that Defendant smelled of alcohol, was unsteady on her feet and slurred her
speec h. Constable McGee then administered two field sobriety tests, recitation of
the alphabet and the finger to nose test, both of which Defendant failed. C onsta ble
McG ee de termin ed De fenda nt to be unde r the influ ence of alco hol.
Mr. Jackson, who was riding with Constable McGee, also observed that
Defendant failed the field sobriety tests. He testified that Defendant had been
driving the vehicle very slowly and that it was weaving prior to being stopped. When
Defendant got out of the car, Mr. Jack son no ticed that s he was “barely ab le to stand
up” an d that s he sm elled o f alcoh ol.
Con stable McGee radioed Officer Stewart when he wa s follow ing De fenda nt’s
car and told him that he was about to stop a car because of a suspected intoxicated
driver. Office r Stew art, wh o was only a few b locks a way, d rove to the sc ene to aid
Con stable McGe e. W hile Officer S tewart ran a record s che ck on the De fenda nt’s
license, he watched Defen dant stag ger towa rds the b ack of he r car and fail to
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succ essfu lly complete the field sobriety tests. In his opinion, Defendant was
“obvio usly drunk” and “h ad no bus iness doing a ny driving of any kind.” He further
testified that she appeared to be more drunk at 9:45 p.m. than when he had seen
her earlier that day.
Con stable McGee placed Defendant under arrest, had her vehicle towed, and
took her to the Coffee County Jail. While driving Defendant to jail, she told him that
she had consumed five beers. Also while in the patrol car, a car in front of them was
“driving all over the road” and Defend ant co mm ented to the o fficers th at “[h]e’s
drunke r than I am .”
Officer Dale B rissey, a correc tional o fficer at th e cou nty jail, testified that when
Defendant arrived at the jail she app eared to be und er the influe nce of an intoxicant.
He noticed that her eyes were bloodshot, her speech was slurred, and that she was
unstea dy on he r feet. Defe ndant re fused to s ubmit to th e intoxim eter test.
Defendant testified that she was not intoxicated and that she only consumed
one and one-h alf beers prior to being stopped by Constable McGee. She said that
the reason she couldn’t recite the alphabet was because she was too nervous to do
so. However, she claimed that she was not incapable of driving. Her boyfriend,
Ramsey Johnson, testified that Defendant was not drunk and that she consumed
less than two beers that evening. He said that she drove the car because she had
had less to drink that evening than he had. Officer Stewart, Constable McGee, Mr.
Jackson and Ms. G rizzle a ll testified that eve n thou gh La kewo od Pa rk is a private ly
owned and operated development the general public nonetheless travels on the
roads within Lakewood Park on a regular daily basis. Lakewood Park does have a
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gated entrance into the subdivision, but accordin g to tes timon y prese nted a t trial,
essen tially no one is denied access into the su bdivision.
I. SUFFICIENCY OF THE EVIDENCE
When an accused challenges the sufficiency of the convicting evidence, the
standard is whether, after reviewing the evidence in the light most favora ble to the
prosection, any rational trier of fact could have found the esse ntial elem ents of the
crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).
This standard is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence or a combination of direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
State is entitle d to the strong est leg itimate view of th e evide nce a nd all in ferences
therefrom. 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, th e acc used has th e burd en in th is court of illustrating why the
evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.
Tug gle, 639 S.W.2d 913, 914 (Tenn. 19 82); State v. Grace, 493 S.W.2d 474, 476
(Tenn. 19 73).
Questions concerning the credibility of the witnesses, the weight and valu e to
be given the evidence, as well as all factual issues raised by the evide nce, are
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt
reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t
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approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts
in favor of the State. Grace, 493 S.W .2d at 476 .
Moreover, a criminal offense may be established exclusively by circumstantial
evidence. Duch ac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901
S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn.
Crim. App. 1981). However, before an accused may be convicted of a criminal
offense based upon circumstantial evidence alone, the facts and circumstances
"must be so strong and coge nt as to exclude b eyond a rea sonable do ubt every other
reaso nable hypothe sis save g uilt of the defen dant." State v. Crawfo rd, 225 Tenn.
478, 470 S.W .2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of
guilt must be woven around the defendant from which he cannot escape and from
which facts and circumstances the jury could draw no other reasonable inference
save the guilt of the de fendan t beyond a reaso nable d oubt." Crawford , 470 S.W.2d
at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).
Tennessee Code An notated section 55-10-401 provides in part as follows:
(a) It is unlawful for any person to drive or to be in physical
control of any automobile . . . on any of the public roads
and highwa ys of the sta te . . . or any other premises
which is generally frequented by the public at large,
while: (1) Under the influence of any intoxicant, marijuana,
narco tic drug, or drug producing stimulating effects on the
central nervous system;
Tenn. C ode Ann . § 55-10-401 (a)(1).
First, from the testimony presented at trial, Defendant was clearly in physical
control of the car. The o fficers observed the car weaving on the road and when the
officers stopp ed the vehicle, it was Defe ndan t who e xited the car from the drive r’s
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side. Second, it is clear to us that Defendant was on premises frequented by the
public at large . Defe ndan t’s insufficiency issue is based on the argument that since
the streets of Lakewood Park a re priva tely maintained by the board of trustees for
Lakewood that they are not su bject to the laws of this S tate. We find that the record
establishes that the streets of Lak ewood P ark are frequented by the public at large.
Although there is a gate d entra nce in to the s ubdivis ion, ap paren tly no on e is actu ally
turned away from entering. Acco rding to testimon y, the public enters the area on a
daily basis and three public establishments are even located in the subdivision.
Defense couns el vigorou sly attem pted to es tablish at trial that the roads located
within Lakewood Park are not in fact frequented by the public. By its verdict, the jury
rejected Defe ndan t’s claims and accredited those of the State. Based on a careful
reading of Tennessee Code Annotated section 55-10-401, it is clear that the
legislature intended for that statute to be applicable to private property which the
public freq uents. D efenda nt’s argum ent is me ritless.
Third, based on the facts presented at trial, the jury could have found
Defendant to be under the influ ence of an in toxican t. Office r Stew art, Co nstab le
McGee, Mr. Jackson and Correction Officer Brissey all testified that Defendant was
intoxicated. Furthermore, Defendant failed to s ucce ssfully c omp lete the field
sobriety tests. A rational jury could have concluded that Defendant’s appearance,
her unsteadiness on her feet, her slurred sp eech, her failure to adequa tely perform
each of the fie ld sobriety tests, and even her own statements shortly after the arrest
demonstrated that Defen dant wa s unde r the influen ce of an in toxicant. In viewing
the evidence in the light most favorable to the State, the evide nce wa s sufficient to
suppo rt a convictio n for first offens e, DUI. T his issue is without m erit.
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II. LEGALITY OF THE STOP
Defendant argues that the arresting officer, Constable McGee, made an
improper stop of Defendant’s car, and that furthermore, he did no t have the authority
to even make the stop.
An investigatory stop of a motor vehicle may be made upon a reas onab le
suspicion by a police officer, sup ported b y specific a nd articula ble facts, tha t a
criminal offense has been or is about to be committed. See Terry v. Ohio , 392 U.S.
1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In order to determine the specific and
articula ble facts, this Court must consider the “totality of the circumstanc es.” State
v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citation omitted). Constable McGee
testified at trial that he began following a vehicle after he saw it “roll” through a stop
sign. He then observed the car being driven in an erratic mann er. These fac ts are
sufficient to support a reasonable suspicion that the driver was under the influence
of an intoxic ant. This issue is with out me rit.
Defendant also argues that the authority of a police officer is different from that
of an elected constable. Specifically, Defendant argues that Constable McGee had
no auth ority to stop her vehicle and arrest her since there is no proo f in the record
that he had graduated from a program required under Tennessee Code Annotated
section 8-10-120 for operation of a patrol car by a constable. There is no showing
in the record that Defendant attempted to elicit any such information from the
Con stable at the time of his test imon y, nor d id Defe ndan t objec t to the C onsta ble’s
authority at the tim e of his testim ony. D efend ant als o did n ot attem pt to rais e this
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issue prior to trial. W e therefo re find that Defen dant h as waive d this issue . See
Tenn . R. App . P. 36(a); T enn. R . Crim. P . 12(f).
Accordingly, the judgment of the trial court is affirmed.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOHN H. PEAY, Judge
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L.T. LAFFERTY, Special Judge
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