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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
August 15, 2001 Session STATE OF TENNESSEE v. DANIEL O'NEIL CONNELLY
Appeal from the Circuit Court for Dickson County No. CR4518 Allen Wallace, Judge

No. M2000-01914-CCA-R3-CD - Filed November 6, 2001

The defendant, Daniel O. Connelly, appeals from his conviction of driving under the influence of an intoxicant (DUI) imposed after a bench trial in the Dickson County Circuit Court. He claims on appeal that the evidence is insufficient to support his conviction and that the trial court erred in overruling a pretrial motion to suppress any evidence that the state garnered following the defendant's warrantless arrest. After hearing oral arguments and reviewing the record, the parties' briefs, and the applicable law, we affirm the conviction. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed. JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G. RILEY, JJ., joined. V. Michael Fox, Nashville, Tennessee, for the Appellant, Daniel O'Neil Connelly. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION In the light most favorable to the state, the evidence presented in the defendant's bench trial showed that on the evening of October 16, 2000 Ms. Tesa Black was sitting on the front porch of her home near White Bluff when she saw a white truck fail to negotiate a curve in front of her house on Claylick Road and run into the ditch. She saw a man in or about the truck and saw no other occupants. Before the man removed the truck from the ditch and left the scene, she obtained the license number and reported by telephone the truck's description and license number to the police. She told the police that the driver may be intoxicated. White Bluff Police Officer Johnny Blanks responded to the call and arrived at the scene. He noted that a vehicle had apparently plowed into the ditch but found no damage to property

or fixtures at the site. Via his radio, he learned that Dickson County Deputy Sheriff Mark Ward had found a white truck on the side of Highway 47 nearby, and Officer Blanks drove to Ward's location. He arrived approximately seven to thirteen minutes after receiving the original dispatch. When he arrived, he found Deputy Ward on the roadside near a parked white truck. The license number on the truck matched the number given to the police department by Ms. Black. Having been dispatched to the scene of the accident near Ms. Black's house and while in route on Highway 47, Deputy Ward saw the white truck parked beside the highway approximately one-half to one mile from Claylick Road. When he pulled up to investigate, he noticed that the license number matched the number provided in the dispatch. The truck was damaged on the right front section. The truck's lights were on. Although the vehicle was not running, the keys were in the ignition switch. Registration records revealed that the defendant owned the white truck. The defendant was standing near the truck holding a tire iron. When Deputy Ward approached, the defendant became "agitated" and responded to questions in an "irate manner." The officer noticed that the right front tire was flat. The rim of the wheel was bent, and there was mud on the front of the vehicle. The defendant denied being on Claylick Road earlier and denied driving the truck. He stated that his wife had been driving and had walked away from the scene to get help. Deputy Ward smelled alcohol on the defendant's person and inside the truck, although he found no other evidence of alcoholic beverages inside the truck. He noticed that the defendant "was a little unsteady on his feet . . . [and] was very evasive in his answering." His speech "wasn't slurr[ed] to the point you couldn't understand him," but it was not "crisp and clear." The officer asked the defendant to perform three field sobriety tests. On the straight-line-walk-and-turn, the defendant took ten steps instead of the nine he was instructed to take and lost his balance on the turn. Deputy Ward indicated that, although three failures on the test are required in order to indicate intoxication, the defendant scored only two points. The defendant, however, failed to satisfactorily complete the one-leg stand. He lost his balance at the count of sixteen rather than holding the stance for the prescribed count of thirty. Although the defendant had indicated prior to the test that he had no injuries or disabilities, he said after losing his balance that he had a "pulled ligament." Officer Ward further testified that the defendant failed a test requiring him to touch the tip of his nose. Based upon the defendant's poor performance on these tests and the deputy's "initial contact with [the defendant], his general demeanor, the way he was walking, his movements," the deputy believed that he was intoxicated and incapable of safely operating a motor vehicle. Deputy Ward testified that he did not believe that a crime was being committed in his presence when he "first arrived" on the scene, but after administering the field sobriety tests, he concluded that the defendant was guilty of DUI "based on everything [he] personally saw." At this point, Deputy Ward arrested the defendant. Both Officer Blanks and Deputy Ward testified that they saw no one walking along the roadside as they drove to the truck's location. The defendant may have told Deputy Ward that his wife had walked down the highway toward Charlotte. The officer knew that she would have -2-

found no "business or anything" for four or five miles in that direction, that in the opposite direction there "are residential areas and . . . stores a half mile" away, and moreover, there were houses with lighted porches within view of the site where the truck was parked. After being transported to the sheriff's office, the defendant declined to sign a consent form for a breath alcohol test. He neither testified in his defense nor offered any other witnesses at trial. Based upon the evidence summarized above, the trial court found beyond a reasonable doubt that the defendant was driving the truck and that the circumstances showed that he was guilty of DUI. The trial judge said, "I've got a man sitting there on the side of the road in an intoxicated condition in a truck that he has control of and there's a question. They could have arrested him right there on the scene and forgot about that accident down there." On appeal, the defendant first asserts that the evidence is insufficient to support his conviction because it fails to establish (1) that the defendant was driving or otherwise physically controlling a vehicle and (2) that he was intoxicated at the time. We disagree. In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as a jury verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). "A finding of guilt by the trial court shall be set aside if the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt." Id.; see Tenn. R. App. P. 13(e). The verdict accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). Moreover, a verdict against the defendant removes the presumption of innocence and raises a presumption of guilt on appeal, State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973); Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of overcoming, State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977). More significantly, where the sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after reviewing 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, 99 S.Ct. 2781, 2782 (1979); Tenn. R. App. P. 13. This rule applies to findings based on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict one of a crime. State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992). As is pertinent to the present case, a person commits DUI who drives or is in "physical control of any automobile or other motor driven vehicle on any of the public roads and highways . . . or while on . . . any . . . premises which is generally frequented by the public at large" while under the influence of any intoxicant. Tenn. Code Ann.

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