# FILED
October 12, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE , * C.C.A. NO. 03C01-9808-CR -00278 Appellee, * HAMBLEN CO UNTY
v. * Hon. James E. Be ckner, Judge DAVID E. HANCOCK , * (DUI-Second Offense) Appellant. *

For Appellant : For Appellee : P. Richard Talley John Knox Walkup P.O. Box 950 Attorney General and Repor ter Dandridge, TN 37725 450 James Robertson Parkwa y Nashville, TN 37243-0493 Todd R. Kelley Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 John Dugger Assistant District Attorney General 510 Allison Street Morristown, TN 37814 OPINION FILED: ____________________

AFFIRMED

NORMA MCGEE OGLE, JUD GE1 The a ppellant w as driving th e truck tractor witho ut the trailer atta ched. 2 OPINION On March 23, 1998, the appellant,David E. Hancock, w as convicted by a jury in the Hamblen County Criminal Court of driving under the influence (DUI), second o ffense . The tria l court im posed a s entence of eleven months a nd twentynine days, with a mini mum of twenty percent to be ser ved prior to release. The trial court also suspended the appell ant’s driver’s li cense for two years.

In this appeal as of right, the appellant presents the follow ing issues for our re view:

(I) Whether the evidence is sufficient to sustain the appellant’s conviction

of DUI; and (II) Whether certain statements made by the prosecuting attorney during clos ing argument constituted prosecutorial misconduct. Following a rev

iew of the record and the par ties’ briefs, we affirm the j udgment of the trial court.
I. Factual Background

On June 8, 1997, the appellant was driving a Peterbilt truck on Old Kentuck y Road in Ha mblen Co unty. 1 As the appellant attempted to nav igate a sharp turn, he lost control of the truck and went off the road. When the appellant tried to steer back onto the r oad, he overcorrected and t raveled across the road into Edward Fox’s y

ard. Carroll Talley , who was travel ing behind the truck, w itnessed the accident.
Talley testified on behalf of the State that on June 8, 1997, at approximately 4:30 p.m., he was drivi ng west on Old Kentucky Road, when a truck dri ven by the3 appellant pulled out of a side str eet into his lane of traffic. Talley was forced to decrease his speed to avoi d a collision with the appellant. Talley testified that he had followed the appellant for approximately one-half to three-quarters of a mile when the appellant reached a s harp curve in the road and veered off the right side of the road. As the appellant ov ercorrected, his truck

traveled back across the road, and crashed into Edward F ox’s yard. In the pr

ocess, the appellant damaged shrubbery, a road sig n, and a mailbox. Talley stated that the appellant’s tr uck was not forced off the road by another v ehicle.
After witnessing the ac cident, Talley stopped his car and went to the residence on the property where he located the proper ty owner, Edwar

d E. Fox. Talley testified that whe n he and Fox returned to the ac cident scene, the appellant was repeatedly dri

ving the truck forw

ard and backward in an att empt to free it from the shrubbery. Fox approached the truck and attempted to talk to the appellant; however, the appellant did not acknowledge his presence. Instead, the appellant continu ed his att empts to extricate his truck f rom the sh rubbery f or approxi mately 20 to 30 minutes, until the poli ce arrived. Talley testified that the appellant fell a s he exited the truck. How

ever, Talley was

not aware of any injuri es to the appellant and stated that the appellant was cooperative with the police.

Edward E. Fox , a resident on Old Kentucky Road, testified that during the afternoon of June 8, 1997, an accident oc curred in his yard. Fox testified that shortly thereafter, Talley came to his door and notified him of the accident. When he and Talley returned to the a ccident scene, Fox notic ed that his shrubbery w as damaged. He recalled that the appellant was in his t ruck and was apparently trying to free it from the shrubbery by repeatedly drivin g it forward and backw ard. The appellant did not leave the t ruck to survey the damage until the police arr ived. Fox4 also testified that the appellant fell as he stepped out of his truck. Moreover, Fox observed some of the field sobrie ty tests administered by the police, and based on his observations, opined that the appellant was under the influence of an intoxicant. Fox further noted that the curve on which the appellant lost control of his truck was a “bad curve” and had been the scene of a number of accidents in recent years.

The state

also pr esented the test imony o f Jeff Atki ns, a dep uty she riff with the Hamblen County Sheriff’s Department. Officer Atki ns testified that on June 8, 1997, at approximately 4:07 p.m., he was dispatched to an acciden t on Old Kentucky R

oad. He arr

ived at the

scene of the ac

cident at app roximately 4:24 p.m. Deputy Atkins immediately observed a Peterbilt tr uck which had apparently crashed into a yard adjacent to the road. Deputy Atkins al so noted that the truck had damaged shrubs, fence posts, and a s treet sign. When Deputy Atkins arr ived, the appellant was in his tr

uck and was trying

to drive the vehicl e.
Deputy Atkins further tes tified that when he was abl e to get the appellant’s attention, he told the appellant to exit the tr uck. As the appellant opened the door, Deputy Atkins s melled alcohol. Moreov er, the appellant stumbled upon exiting, and Deputy

Atkins recalled assis

ting the appellant out of the tru ck. Deputy Atkins then asked the appellant if he had been drinking, and the ap pellant replied, “No sir.” When Deputy Atkins q uestioned the appellant regar ding the cause of the accident, the appellant told hi m that another vehicle had forc ed him off the road. At some point, Deputy Atkins noticed that the appellant had a “black eye,” and inqui red whether the appellant needed medi cal treatment. The appellant refused medical treatment, stated that he had struck the rear view mirror and, “was just fine.” Furthermore, Deputy Atki ns also discovered an empty beer can in the truck.5 Although Deputy Atkins did not administer the field so briety tests, he observed the appellant perform the tests. Deputy Atkins recalled that the appellant was cooperative and foll owed instructions, but he performed poorly. Also, h e noted that the appellant “had an odor of alcohol abo ut him.” Based on the appellant’s performance and his other observ ations, Deputy Atkins c oncluded that the appellant was intoxicated and not injured. Later, whil e Deputy Atkins was transporting the appellant to the Morristow n Police Department to adminis ter an Intoximeter test, he again asked the appellant if the appellant had consumed any alcoho l that day. The appellant replied that he had dr unk one beer.
Hugh Moore, a Captain with the Hamblen County Sheriff’s Department, testified that he w as dispatched to the scene of the accident to offer assistance to Deputy Atkins. After being briefed by Deputy Atkins, Captain Moore suspected that the accident was alcohol related. Deputy Atkins testified th at there was “an odor of alcohol about [ the appellant ].” Moreov er, Captain Moore did not inquire specifically if the appellant was injured because Deputy Atkins informed him that the appellant had refused medical treatment. However,Captain Moore recalled that the appellant had an “obvi ous” injury to his face.Captain Moore also stated that the curve on whic

h the appellant lost control of the tractor was a “bad curve” and had been the scene of a numbe r of accidents in recent years.

Captain Moore also testified that he administered three field sobriety tests to the appellant: the fing er-to-nose test, the wa lking heel-to-toe test , and the one leg stand test. Although the appellant followed his directions, Captain Moore noted that the appellant was “having trouble wi th his balance.” Duringthe finger-tonose test, the appellant missed the tip of his nose. Moreove r, during the heel-to- toe test, the appellant only c ompleted approximately four steps. The appellant6 explained that his poor per formance was due to the wor n soles on his boots. Finally, during the one leg stand, the appellant was unable to keep his foot el evated. Throughout the testing, the appe llant did not appear confused or add led. Based on the appellant’s performance, his personal observations, a nd the information regarding the accident , Captain Moore concluded that the appellant was impair ed as a result of intoxication.He placed the appellant under arrest and ordered Deputy Atkins to transport the appel lant to the Morristow n police station.
Additionally, the State pr esented the testimony of Tim Wolfenbarger, an officer with the Morris

town Police Department. Officer Wolfenbarger was ordered to administer an Intoximeter test to the appellant in order to measure the blood alcohol level in the appellant’s

body. Officer Wolfenbarger testified that he w as certified to administer the test and that the mac hine had been certified by the Tennes see Bureau of Investigation on M ay 6, 1997. Further, Officer Wolfenbarger testified that he followed all of the operating procedures and that the Intox imeter was worki ng properly. The appellant tried three separate times to blow into the Intoximete r; however, the Intoxi meter results register ed an insufficient sample.
The appellant offered the dep osition testimony of Dr. Donald C. Thompson, the appellant’s physi cian. Dr. Thompson testified that his associate treated the appellant at his office on June 11, 1997, three days after th e accident. On that day, the appellant compl ained of headaches, blurred vi sion, light headedness, and “feeling scatter ed.” Additionally, the appellant had a “black eye” and his pupils were uneq ual, indicating that he had experienced head trauma. Further, the attending phy sician noted that the appellant had a staggering ga it. Based on these observations, the attending physici an concluded that the appellant “probably had a concussion,” and prescribed analgesics and muscle relaxants. Dr.7 Thompson did not personally see the appellant until July 7, 1997, approximately on e month after the accident.

Dr. Thompson fu rther testi fied that the appellant’s symptoms immediately following the accident would be more severe than the symptoms which were observed at the doc tor’s office. Moreover, Dr. Thompson stated that the symptoms of an intoxicated per son would be similar t

o the symptoms of a person suffering from a head injury. Finally, Dr. Thompson opi ned that the appellant’s head injury could have affected hi s ability to perform the Intoximeter test.

On cross-examination, D r. Thompson stated that his testi mony was primarily based on the notes of his associate, not his personal observations. Dr. Thompson stated that the appellant, as a result of his head injury , was “addled,” “deluded,” and “did not hav e a good contact with hi s reality” in his refusal of medical treatment. Moreover, Dr. Thompson opined that the ap pellant was probably still addled when he visited his office three days after the accident. On cross examination, Doctor Thompson admitted that he had plead guilty to driving under the influence approximately one week prior to his

testimony.

II. Analy sis A. Sufficien cy of the Ev idence The appellant contends that the record conta ins insufficient evidence to sustain his conviction for driving under the influence. Specifically , the appellant argues that although there is evidence in the rec

ord that indicates the appell ant was impaired by alcohol , there is also amp le evidenc e from whi ch the jur y could have8 determined that the appellant simply had an accident on a “bad curve” and that his physical condition at the scene was a result of hi s head injury, not intox ication.
In Tennessee, appellate courts acc ord considerable weig ht to the verdict of a jury i n a criminal trial. In essence, a jury conv

iction removes the presumption of the defendant’s innocence and replaces it with one of g uilt, so that the appellant carries the burden of demonstrat ing to this court why the evidence will not support the jury’s findings. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that “no reasonable trier of fact” coul d have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); T enn R. App. P. 13(e).

Accordingly, on appeal , the State is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich may be drawn there from. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). In other word s, questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

factual issues raised by the evidence, are resol ved by the trier of fact, and not the appellate courts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). Furthermore, it is well established that the offense of driving under the influence of an intoxicant may be established by circumstantial evidence. State v. Gilbert , 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988); State v. Woods , No. 03C01- 9804-CC-00163, 1999 WL 427657, at *3-4 (Tenn. Cri m. App. at Knoxville, J une 28, 1999).
With respect to the appellant’s convic tion of driving under th e influence, the applicable statute provides:

(a) It is unlawful for any person to drive or be i n physical control of an automobile or other motor driven vehicl e on2 See State v. Guilds , No. 0 1C0 1-98 04-C C-0 018 2, 19 99 W L 333 368 , at *3- 4 (T enn . Crim

. App. at N ashville, Ma y 27, 1999 ); State v. Washington , No. 02C01-9710-CR-00408, 1998 WL 855458, at *1-2 (T enn. Cr im. Ap p. at Jack son, De cem ber 10, 1 998); State v. Blackman , No. 01C01- 9708- CC00335 , 1998 W L 7618 11, at *4-5 (Tenn . Crim. A pp. at Na shville, Oc tober 30 , 1998); State v. Pic kett , No. 01C01-9710-CC-00472, 1998 WL 559408, at *2-3 (Tenn. Cri m. App. at Nashvil le, August 31, 1998); State v. Sc hwartz , No. 01C01-9705-CC-00190, 1998 WL 120307, at *4-5 (Tenn. Cri m. App. at Nash ville, March 18, 1998 ); State v. Turner , No. 03C0 1-9604-C C-00151 , 1997 W L 379158 , at *2 (Tenn . Crim. A pp. at Kno xville, July 9, 199 7). 9

any of the public roads and hig hways of the state . . . while: (1) Under the influence of any intoxicant, marijuana, narcotic drug , or drug producing stimulating effects on the central nervous system; . . . . Tenn. Code Ann. § 55-10-401 (1998). In this case, the jury convicted the appellant of driving under the influen ce pursuant to an indictment char ging that the appellant did unlawfully commit th e offense of driving under the influence by driving a Peterbilt tractor upon the public roads and highways of the State of Tennessee while under the influence of an intoxicant, to-wit: alcohol, marijuana, narcotic drug or a drug producing s

timulating effects on the central nervous system: a Class A misdemeanor in violation of Tenn. Code Ann. § 55-10- 401. . . .
We conclude that the evidence , when viewed in a light most favorable to the State, was sufficient for a rational jury to rej ect the appellant’s theory and find beyond a reasonable doubt that the appellant had committed the offense of driv ing under the influence of an intoxic ant. 2 Talley, the only ey e-witness to the acci dent, testified that the appellant was driving his truck on Old Kentucky Road when he lost control of the truck and crashed into Fox’s yard. Talley, Fox, and Deputy Atkins all testified that the appellant fell or stumbled upon exiting hi s truck.
Deputy Atkins testified that he smelled alcohol whe n the appellant opened the door of his truck, and, further more, Deputy Atkins and C aptain Moore both stated that the appellant “had an odo r of alcohol.” Deputy Atkins also testified that the appellant declined his offer of medic al treatment. Moreover,Deputy Atkins10 testified that he discovere d an empty beer can in the appel lant’s truck and that the appellant later admitted to dri nking one beer prior to d riving. Finall y, both Deputy Atkins and Captain Moore testified that the appellan t performed poorly on three field sobriety tests. Based o n their observations, bo th officers concluded that the appellant was under the influ ence of an intoxicant.

In this case, the appellant es sentially asks this

court to reconsider the evidence and substitute a v erdict of not guilty i n exchange for the verdi ct found by the jury. That is not our function. We conclude that a rational jury could have found beyond a reasonable doubt that the appellant had committed the offense of driv ing under the influence of an intoxic ant. This issue is wi

thout merit.

B. Prosecutorial Misco nduct

The appellant also contends that cer tain statements made by the prosecutor during clos ing argument constituted p rosecutorial misconduct. Even though the appellant voice d an objection that the argument was improper and the trial cou rt sustai ned the o bjection , the app ellant di d not requ est any cur ative measures. The appellant further argues that the prosecutor intended to unduly prejudice him by his continued remarks. The relevant portion of the prosecu tor’s closing argument is as follows:

And what’s scary, he’s operating one of the biggest vehicles on the road. What if somebody had been coming the other way when that happened? They would be dead. They wouldn’t hav e a chance. Mr. Talley: If the Court please, that’s improper ar gument. The Court: Sustained. Mr. Dugger: Peterbilt tractors are big vehicles. The least little bit of drinking or anything on driving those things -- They’re saying how

-- the defense is saying how between the centerline and the roadw ay, how they hav

e to keep that thing -- how it’s so hard to keep it in there because11 it’s so big. Well, that should be ev en more reason that you shouldn’t drink anything, driving one of those big vehicles because other peop le don’t have a chance. Our state courts have recognized that a closing argument is a valuable privilege for both the S

tate and the defense, and, accordingl y, have afforded wide latitude to counsel in pres enting final argument to the j ury. State v. Cribbs , 967 S.W.2d 773, 783 (Tenn. 1998); State v. Cauthern , 967 S.W.2d 726, 736 (Tenn. 1998). Although trial c

ourts have discretionar y authority to contr

ol the argument of counsel, “[c]losing arguments must be temperate, must be ba sed upon the evidence introduced at trial, and must be relevant to the issues at trial.” State v. Coker , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). The standard of r eview in determining whether counsel was allowed too much latitude dur ing closing argument

is abuse of discretion. State v. Sutton , 562 S.W.2d 820, 82 3 (Tenn. 1978).

If prosecutorial conduct is deemed improper, the ap pellate court must determine “whether the impropriety affected the verdict.” State v. Pulliam , 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). See also Harrington v. State , 385 S.W.2d 758, 759 (T enn. 1965). Prejudice is assessed by analyzing the misconduct in light of the factors set forth in Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976): (1) the misconduct view ed in the context and the facts and the circumstances of the case; (2) any curative measures taken by the court or the prosecutor; (3) the intent of the prosecutor; (4) the cumulative effect of the mis conduct in view of the consequences of any other er rors in the trial; and (5) the “relative s

trength or weakness of the case.”12 Although the prosecutor’s remarks were improper, they were relati vely brief and there is no evidence that the prosecutor intended to undul y prejudice the appellant by his remarks . Moreover, whil e the court gave no cura tive instructions to the jury, the appellant di d not ask the court to do so. Ther e were only ver

y minor errors in the trial and the state presented a strong case. Considering all these factors, we conclude that the prosecutors remarks, par ticularly in vi ew of the strength of the state’s case,were insignificant.This issue has no merit.

Accordingly, the judgment of the trial court is affirmed.

__________________________________ Norma McGee Ogle, Judge

CONCUR:

______________________________ Jerry L. Smith, Jud ge

_______________________________ Joe G. Riley, Judge