# FILED
June 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CC-00264 Appellee, ) ) McNAIRY COUNTY VS. ) ) HON. JON KERRY ) BLACKWOOD, LILLY FRAN BA KER, ) JUDGE (A.K.A. LILLIE F. HOLLOWA Y), )

) Appellant. ) (DUI, 3d Offense)

FOR THE APPELLANT : LLOYD R. TATUM 124 E. Main Street P.O. Box 293 Henderson, TN 38340 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELI ZABE TH T. RYAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General ED NEAL McDA

NIEL Assistant

DistrictAttorney General 300 Indu strial Par k Drive P.O. Box 473 Selmer, TN 38375-0473

OPINION FI LED:

AFFIRMED
JERRY L. SMITH, JUDGE2 OPINION
The defendant, Lilly Fran Baker, appeals a jury conv iction for driving under the influence of an intoxic ant, third offense. She was sentenc ed to eleven (11) months and twenty- nine (29) days, all but 120 days suspended, and fined $10,000. On appeal, the defendant raises the following issues for review: (1) whether the evi dence was sufficient for the jur y to find her guilty beyond a reasonable doubt; (2) whether the trial

court erred in failing

to declare a mistrial after mistakenly informing the jury that the defendant was also charged with driving while revoke d and viola ting the im plied con sent law; and (3) whether the trial court’s instructions erroneously allowed the jury to consider intoxicants

in addition to alcohol. The judgment of the trial court is affirmed.

FACTS
Patrol Sergeant R.C. Pi pkins of the Selmer Police Depar tment testified that he observed a pickup tr uck driven by the defendant mak e an improper turn. The officer began following the defendant and noticed the vehicle “ drifting” and cross onto the shoulder. After a distance of approximately one-half (1⁄2) mile, the officer activated his lights and the defendant pu lled over.
Sergeant Pipkins asked the defendant to exit the truck and m eet him between their vehicl es. The officer testified that the defendant appear ed unsteady on her feet. Sergeant Pipkins also testified that he smelled an odor of alcohol on the defendant’s breath, and her speech was slurr ed. The defendant informed the officer that she had lupus and w as on medication, but did not indicate that this would affect her ability to drive a motor vehicle or perform field sobriety tests.3 Sergeant Pipkins administ ered three (3) field sobri ety tests to the defendant. The defendant performed the “one leg st and,” the “walk and tur n,” and the “finger to nose” test s. The officer testified the defendant passed the “one leg stand” test, but failed the other two. The defendant faile d the “walk and turn” test by failing

to touch the heel of her shoe to the t oe of the other shoe, stepping off of the line, raising her arms, and making an impr oper turn. She performed the “finger to nose” t est unsatisfactorily by

not following instru ctions and by failing to touch her nose on any of the six (6) attempts to do so. After the field sobriety tests w

ere completed, the officer was of the opinion that the defendant was under the influence of an i ntoxicant.

After the defendant was arrested, Sergeant Pipkins found in the t ruck the following: four (4) full , one (1) empty, and one (1) half-empty, 12 ounce cans of Natural Light beer; tw

o (2) full and one (1) half-empty 16 ounce cans of Budweiser beer; and one (1) empty can of Busch beer. The def endant’s boyfriend was a passenger in the vehicle.
Subsequent to his search of the v ehicle, the officer requested that the defendant submit to a chem ical test to dete rmine the cont ent of alcoho l or drugs in her blood. The defendant refused to submit to the test.

At her trial, the defendant testified that she had consumed only one ( 1) beer and a part of another at the time s he was arrested. She deni ed being under the influence. The defend ant also presented testimony from a witness who stated he observed th e defendant approximately tw o (2) hours before her arrest, and she did not appear to be under the influence of alcohol at that time.4 SUFFICIENCY OF THE EVIDENCE

The defendant contends that no rational tr ier of fact, after weighing the evidence presented at her tr ial, could conclude beyond a reasonable doubt that she was driving

under the influence of an intoxic ant. In Tennessee, great we ight is given to the result reached by the jury in a criminal trial. A jury verdict accredits the state's w

itnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the s tate is entitled to the str ongest legitimate view of the evidence and all re asonabl e infere nces which may be dra wn therefrom. Id. ; State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). Moreover, a guilty verdic

t removes the presumption of innoc ence which the appellant enjoyed at trial and raises a presumption of guilt on ap peal. State v. Grace , 493 S.W.2d 474, 476 (T enn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is chall enged, the relevant ques tion for an appellate court 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 or crimes beyond a reasonab le doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abr ams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibil ity of the witnesses' testimony are matters entr usted exclusively t

o the jury as the trier

s of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Te nn. Crim. App. 1996).
Sergeant Pipkins testified that he observed the defendant make an improper turn and deviate fro m the roadway. He further testified that the defendant had a strong smell of alcohol on her person, was unsteady on her feet, had slurred speech and w as unable to satisfactorily perform two (2) of the5

three (3) field sobriety

tests administered. The jury also heard testimony from the officer that the defendant appeared to be under the influence of an intoxicant. When viewed in a l ight most favorable to the s tate, there is sufficient evidence in the record for the jury to have rendered a guilty verdict. This issue is without merit.

MIS TRI AL
The defendant’s second assignment of err or is that the trial cour

t abused its discretion in overruling her motion for a mistrial. The defendant mo ved for a mistrial at the conclusion of the trial court’s voir dire examination of the jury poo l. While informing the jury as to the issues they would be deciding, the trial court mistakenly included the r evoked license and implie d consent charges whi ch, although in the same indictment,had been severed for the jury trial. The defendant contends the mentio n of the other charges might have caused the jury to infer she had previously been convicted of drivi ng under the influence, thereby unfairly prejudicing her.
No contemporaneous objection was made at the time th e trial court relayed this information to the jury. An objection was made out of the prese nce of the jury after the trial court completed its initial voir dire of the jury. The trial court acknowledged it

s mistake and gave the foll owing curative instruction to the prospective jurors:

Ladies and gentlemen, the Court may have mentioned --- The charge here today is Driving Under th e Influence of an Intoxicant. The Court w as in error in any other charges that the Court may have expl ained to you. But the only charge you’ll be dealing with here today is Driving U nder the Influence of an Intoxicant.
The determination of whether to g rant a mistrial rests within the sound discretion of the trial cour t. State v. Smith , 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing cour

t should not overturn that decision absent an abuse of6

discretion. State v. Hall , 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The burden of establishing the neces sity for mistrial l ies with the party seeking it. State v. Williams , 929 S.W.2d 385, 38 8 (Tenn. Crim. App. 1996). In making this determination, no abstract formula should b e mechanically applied, and all circumstances should be taken into account. State v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993).
The trial court gave a curative instructi on to the jury concernin g the charges. The jury, a bsent evid ence to t he contra ry, is presu med to ha ve followed the trial court

’s curative instru ctions. State v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994); State v. Williams , 929 S.W.2d at 388. T he defendant’s contention that she might hav e been prejudiced is not sufficient to overcome the presumption. This issue is without merit.

JURY INSTRUCTIONS
Finally, the defendant clai ms the trial court’s in struction on driving under the influence of an intoxicant w as prejudicial in that i

t included all intoxi cants, yet the state previously “elected” to prove alcohol as the means of the defe ndant’s intoxication. The “elec

tion” was made by the s tate at the defendant’s request at the conclusion of the state’s proof. Subse quently, the trial co urt’s jury charge was as follows:

Any person who commits the offense of driving under the influence of an intoxicant is guilty of a crime. For you to find the defendant guilty of this offense, the st ate must have proven bey ond a reasonable doubt the existe nce of the following elements. That the defendant was driving an automobile or motor driven vehicle and that this act occurred on a public road or highway or a public street or alley, and tha

t the defendant was under the influenc e of an intoxicant. The expr ession “under the influence of an intoxicant” covers not only -- covers not only all the well-known and easily recognized conditions

and degrees of intoxicati on, but also any mental or physical condition which is the result of taking intoxicants, in any form, and which depr ives one of that clearness of mi nd and control of herself which she would otherwise possess.7 The defendant contends this instruction casts doubt on whether the jury’s verdict was unanimous as to the type of intoxic ant. The defendant complains the wording of the instruc

tion could have led some jur ors to convict her of bein g under the influence of an intoxicant other than alcohol.
One of the leading cases in this state on the doctrine of ele ction is Burlison v. State , 501 S.W.2d 801 (Tenn. 1973). In that case, after the st ate introduced proof of numerous incidents of sexual abuse over a per iod of time, the Tennessee Supreme Court held the s tate was required to “elect” the particular offense upon which it was seeking a con viction. Burlison , 501 S.W.2d at 804. One of the reasons for requiring an election in that case was to ensure the unanimity of the jury’s verdict, avoidi ng a situation where on e juror convicted for one occurrence and other jur ors for another occurrence. Id. at 803. More recently, our Supreme Cou rt has ruled that the state mus t make an election “when it is pursuing

convictions for discr

ete crimes and proof of additional discrete crimes has been introduced at trial.” State v. Hoxie , ___ S.W.2d___,___ (Tenn. 1998).
The doctrine of election does not appl y to a single offense of driv ing under the influence. See State v. Ernest Seibers , C.C.A. No. 89-20-III, White County (Tenn. Crim. App. filed June 29, 1989 , at Nashville). The de fendant was charged with only

one offense of driving under the i nfluence. The proof showed only one offense. Therefore, the state w as not required to elect a particular type of intoxicant.
Regardless, the state onl y relied upon alcohol to have caused the defendant’s impairment. The defendant was not prejudiced by the use of the word “intoxicant”

instead of the word “alcoho l” in the jury char ge. See Tenn. R. App. P. 36(b). This issue i s without merit.8 The judgment of the trial court is AFFIRMED.

_________________________ JERRY L. SMITH, JU DGE

CONCUR:

______________________________ JOE B. JONES, JUDGE

_____________________________ CURWOOD WITT, JUDGE