State of Tennessee v. Clinton Darrell Turner ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FEBRUARY SESSION, 1997
FILED
July 9, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9604-CC-00151
)
Appellee, ) COCKE COUNTY
)
)
V. ) HON. BEN W. HOOPER, II,
) JUDGE
CLINTON DARRELL TURNER, )
) (DUI; DRIVING WHILE
Appellant. ) LICENSE SUSPENDED)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD CANTRELL MILLER JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
SUSANNA LAWS THOM AS ELIZABETH T. RYAN
Assistant Public Defender Assistant Attorney General
102 Mims Avenue 450 James Robertson Parkway
Newport, TN 37821-3614 Nashville, TN 37243-0493
ALFRED C. SCHMUTZER, JR.
District Attorney General
JAMES BRUCE DUNN
Assistant District Attorney General
339A East Main Street
Newport, TN 37821
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Clinton Darrell Turner, appeals as of right his conviction
and sentence for DUI. Following a jury trial, the Defendant was convicted of
driving a motor vehicle while under the influence of an intoxicant and driving on
a revoked license in the Cocke County Circuit Court. The trial court sentenced
the Defendant to eleven (11) months and twenty-nine (29) days on the charge of
driving while under the influence and six months for the charge of driving on a
revoked license. The sentences were ordered to be served concurrently. The
trial court suspended the entire sentence for the conviction of driving on a
revoked license. On the DUI, the Defendant was ordered to serve seven days
in jail with the balance to be served on probation. In addition to challenging the
sufficiency of the evidence, Defendant also argues the trial court erred by
allowing an officer to testify as to field sobriety tests when the officer was not
trained to administer those tests. The last issue the Defendant raises is that the
trial court erred by sentencing him to serve seven days rather than the two (2)
day minimum provided by law. We affirm the judgment of the trial court.
SUFFICIENCY OF THE EVIDENCE
Defendant first challenges the 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 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
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(1979). On appeal, the State is entitled to the strongest legitimate view of the
evidence and all inferences therefrom . State v. Cabbage, 571 S.W .2d 832, 835
(Tenn. 1978). A jury verdict approved by the trial judge accredits the State’s
witnesses and resolves all conflicts in favor of the State. State v. Grace, 493
S.W .2d 474, 476 (Tenn. 1973).
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 evidence is insufficient to support the verdict returned by
the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493
S.W.2d at 476. Any 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 trier of fact, not this court. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987).
Nor may this court reweigh or reevaluate the evidence. Cabbage, 571 S.W .2d
at 835.
Officer Bennie Shelton of the Cocke County Sheriff’s Department was the
State’s only witness at trial. The Defendant presented no proof. Officer Shelton
testified that on July 15, 1994 at 1:30 a.m., he was on patrol and observed the
Defendant’s car traveling down Asheville Highway. The Defendant’s car
headlights were not on, and, while the car was not a convertible, it had no top.
After Officer Shelton pulled behind the vehicle with his blue lights on, the
Defendant pulled over to the side of the road. He approached the driver’s side
and found the Defendant to have bloodshot eyes. When he asked Defendant for
his license, Officer Shelton noticed that his speech was som ewhat slurred in
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response. Defendant failed to produce his license. Shelton asked Defendant
to get out of his car, and the Defendant then told him he did not have a license.
W hen the Defendant exited his car, Shelton observed that he was walking off-
balance. A computer check indicated that Defendant’s license had been
revoked.
Officer Shelton administered three separate field sobriety tests, including
the horizontal gaze nystagmus, recitation of ABC’s, and the finger to nose tests.
W hile the Defendant did follow his directions, he was unable to completely follow
the pen during the horizontal gaze nystagmus test without moving his head.
During his recitation of the ABC’s, he left out some letters and his speech was
notably slurred. When the Defendant tried to perform the finger to nose test, he
was only able to touch his top lip. Defendant’s performance on these tests, in
addition to the sm ell of alcohol about the Defendant, his slurred speech,
bloodshot eyes, and driving with no headlights, indicated to Officer Shelton that
the Defendant was impaired by an intoxicant. Furthermore, the Officer observed
an empty liquor bottle in the Defendant’s car, and the Defendant stated that he
had just left a local bar, The Brown House, where he drank some alcoholic
beverages. Based upon all these observations, Officer Shelton determined that
Defendant was operating a motor vehicle while under the influence of intoxicants
and arrested him. Defendant subsequently refused to subm it to a breath alcohol
test.
Officer Shelton admitted on cross-examination that he was not formally
trained in the administration of the horizontal gaze nystagmus test or the finger
to nose test. He had observed state troopers administer the horizontal gaze
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nystagmus test. He added that he was aware of what would be “norm al” in a
performance of the “recitation of ABC” test and the “finger to nose” test. Officer
Shelton also added that he had made m any prior arrests for DUI in the previous
seven years service as a law enforcement officer.
Defendant was convicted of driving while under the influence of an
intoxicant. Tenn. Code Ann. § 55-10-401(a). At the time of the offense this
statute provided that, “It is unlawful for any person . . . to drive . . . any automobile
. . . on any of the public roads or highways of the state of Tennessee . . . while
under the influence of an intoxicant . . .” Tenn. Code Ann. § 55-10-401. The
record in this case demonstrates that the Defendant was driving his car on a
Tennessee highway while under the influence of an intoxicant. This is shown by
the Defendant’s slurred speech, unsteady gait, bloodshot eyes, smell of alcohol,
and driving without the use of his headlights at 1:30 a.m. on Asheville Highway.
In addition, the Defendant’s performance on the field sobriety tests indicated his
guilt. Defendant also admitted to the Officer that he had been drinking. Based
upon the standard of review for this Court, there was more than sufficient
evidence for a rational trier of fact to determine that Defendant was driving while
under the influence of alcohol. This Court has long held that circumstantial
evidence alone is sufficient to establish the elements necessary to sustain a
conviction for DUI. See, e.g. Hopson v. State, 201 Tenn. 337, 299 S.W .2d 11
(1957); Farmer v. State, 208 Tenn. 75, 343 S.W .2d 895 (1961); Hardin v. State,
210 Tenn. 116, 355 S.W .2d 105 (1962); State v. Gilbert, 751 S.W .2d 454, 459
(Tenn. Crim. App. 1988). While Defendant argues that the State should be
required to prove its case by more than Officer Shelton’s testimony, there is
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clearly no such requirement under Tennessee law. State v. Vasser, 870 S.W .2d
543, 544 (Tenn. Crim. App. 1993). There is no merit to this issue.
TESTIMONY OF OFFICER SHELTON
Defendant argues that the trial court erred in allowing Officer Shelton to
testify regarding his opinion that the Defendant was impaired. At trial, Defendant
failed to timely object to Officer Shelton’s competence as a witness regarding
Defendant’s impairment and his subsequent opinion as to Defendant’s
intoxication. The trial court overruled Defendant’s later objection on that basis.
Failure to make a contemporaneous objection normally waives consideration by
this court of the issue on appeal. See T.R.A.P. 36(a); Teague v. State, 772
S.W .2d 915, 926 (Tenn. Crim. App. 1988), perm. to appeal denied, id. (Tenn.
1989); State v. Killebrew, 760 S.W .2d 228, 235 (Tenn. Crim. App.), perm. to
appeal denied, id. (Tenn. 1988). Defendant did object during cross-examination,
but then failed to make a motion to strike any of the testimony of Officer Shelton.
Such failure by the Defendant constitutes waiver of this evidentiary issue. See
State v. Pilkey, 776 S.W .2d 943, 952 (Tenn. 1989) cert. denied, 108 L. Ed. 646(1990). In any event we are unaware of any case law that requires expert
testimony to establish proof regarding the field sobriety tests which are known as
the “finger to nose” and “recitation of ABC’s” tests. In fact, in State v. Gilbert, 751
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S.W.2d 454, 459 (Tenn. Crim. App. 1988) this court held that in general field
sobriety tests are not “scientific tests” and that the admissibility of the results of
such tests are not to be governed by rules pertaining to the admission of scientific
evidence.
Notwithstanding the failure of Defendant’s counsel to object or move to
strike Officer Shelton’s testimony, any such error by the trial court was harmless
error. We agree that Officer Shelton should not have been permitted to testify
regarding the horizontal gaze nystagmus (HGN) test upon proper objection being
made. He testified that he lacked form al training in the HGN test. We feel the
horizontal gaze nystagmus test is scientific evidence, and, accordingly, the proof
regarding the test should be admitted with a sufficient foundation laid by expert
testimony. See State v. Cora Murphy, No. 01S01-9602-CC-00035, Davidson
County (Tenn. Crim. App., at Nashville, filed O ctober 6, 1995) perm. to appeal
granted (Tenn. 1996). We acknowledge other panels of this Court disagree with
this conclusion. This issue is presently pending in the Tennessee Supreme
Court. Regardless, there was more than sufficient evidence for a rational trier of
fact to find the Defendant guilty of driving a motor vehicle while under the
influence of alcohol even without the testimony regarding the HGN test. State v.
Ronnie Kirk, No. 02C01-9309-CC-00215, Chester County (Tenn. Crim. App., at
Jackson, filed October 12, 1994) (No Rule 11 application filed). Any error in
allowing any of that testimony was harmless beyond a reasonable doubt. This
issue is without merit.
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SENTENCE
Defendant argues that the trial court erred in sentencing him to serve
seven days in prison, rather than the two-day mandatory minimum sentence.
The misdemeanant, unlike a felon, is not entitled to the presumption of a
minimum sentence. State v. Creasy, 885 S.W .2d 829, 832 (Tenn. Crim. App.
1994). Under Tennessee Code Annotated section 55-10-403, a person convicted
of driving a motor vehicle while under the influence of an intoxicant must be
confined for not less than forty-eight (48) hours nor more than eleven (11) months
and twenty-nine (29) days. This statute, in effect, mandates a maximum
sentence for DUI, with the trial court’s only function to determine what period
above the minimum period of incarceration established by statute, if any, is to be
suspended. State v. Kerry Combs, No. 03C01-9409-CR-00314, Greene County
(Tenn. Crim. App., at Knoxville, filed September 9, 1996), perm. to appeal denied
(Tenn. 1997).
A challenge as to the length, range or manner of service of a sentence
requires this Court to conduct a de novo review with a presumption that the
determinations made by the trial court are correct so long as the record
demonstrates that the trial court properly considered relevant sentencing
principles. Tenn. Code Ann. § 40-35-401(d); State v. Ashby, 823 S.W .2d 166
(Tenn. 1991). In conducting a de novo review this Court must weigh the
evidence received at trial and sentencing hearing, the pre-sentence report,
statutory principles for sentencing, counsel’s arguments regarding sentencing
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alternatives, the criminal conduct and its nature, mitigating and enhancing
factors, the defendant’s statement, and the defendant’s potential for rehabilitation
or treatment. Ashby, 823 S.W .2d at 169. The record reflects that the trial judge
failed to follow the sentencing principles of Ashby and, therefore, there is no
presumption of correctness. However, upon review of the record we find no
reversible error in the sentencing of Defendant.
W hile no presentence report was completed, the Defendant asserts that
he had no prior criminal record and that there were no enhancem ent factors
applicable to his offense. The record fails to reflect that the trial judge found any
enhancement or mitigating factors. The record does reflect that the
circumstances of the offense were serious in that the Defendant was driving
along a state highway without his lights on at 1:30 a.m. In his statement to the
trial court, Defendant admitted to having driven numerous times while his license
was revoked. Such acts were in knowing violation of the law. In consideration
of the above, we cannot conclude that the trial court erred in ordering a sentence
which was greater than the minimum forty-eight (48) hours mandated by the
statute. See State v. Warner D. Brannon, C.C.A. 03C01-9508-CR-00233, Knox
County (Tenn. Crim. App. at Knoxville, filed April 3, 1996), perm. to appeal
denied (Tenn. 1996).
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The judgment of the trial court is therefore affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JERRY L. SMITH, Judge
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