IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 10, 2004

STATE OF TENNESSEE v. WILLIAM D. PENDERGRASS

Direct Appeal from the Circuit Court for Hickman County

No. 02-5096CR-II Russ Heldman, Judge

No. M2003-01769-CCA-R3-CD - Filed March 3, 2004

The defendant was convicted of third offense driving under the influence (DUI) and driving on a

revoked license. He contends on appeal that (1) the evidence was insufficient to support the

convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not

have reasonable suspicion to initiate the stop, and (3) the deputy’s mention of the horizontal gaze

nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no

reversible error occurred, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which JOE G.RILEY and ROBERT

W. WEDEMEYER, JJ., joined.

Kenneth K. Crites, Centerville, Tennessee, for the appellant, William D. Pendergrass.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

Ronald L. Davis, District Attorney General; and Michael J. Fahey, II, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Following a jury trial, the defendant, William D. Pendergrass, was convicted of third offense

driving under the influence (DUI), a Class A misdemeanor, and driving on a revoked license, a Class

B misdemeanor. He was sentenced to eleven months, twenty-nine days for his DUI conviction, to

be suspended after service of 120 days, and he was fined $1100. He was sentenced to six months

for his driving on a revoked license conviction, to be suspended after service of 130 days, and he was

fined $500. The defendant timely filed his notice of appeal. He contends on appeal that (1) the

evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion

to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the

deputy’s mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the

defendant to a mistrial. We affirm the judgments of the trial court.
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Facts

During the late afternoon hours of August 18, 2001, Deputy Carl Mark Hooper of the

Hickman County Sheriff’s Department, received a dispatch that a red Chevrolet had been involved

in a hit and run accident in the area where the deputy was patrolling. The deputy pulled into the

parking lot of a church and began to observe traffic, looking for the suspect vehicle. As he was

stationed in the parking lot, a vehicle, matching the description given by dispatch, passed by the

deputy’s location. He pulled in behind the vehicle and called in the license plate number to confirm

whether it was the same vehicle that was reported earlier. Dispatch confirmed the identity of the

vehicle and also noted that the license tag actually belonged to another vehicle. The deputy followed

the vehicle for approximately one or two miles. The deputy observed the vehicle cross the double

yellow line and then weave all the way back across the white line on several occasions. After

observing the erratic driving, the deputy initiated a stop of the vehicle. 

The deputy approached the vehicle and asked the driver, who was later identified as the

defendant, for his license. The defendant stated that he did not have a driver’s license. The deputy

observed an open container of alcohol in the floorboard of the vehicle. He also noticed that the

defendant had bloodshot eyes and smelled of alcohol. The deputy asked the defendant if he had been

drinking, and the defendant stated that he had consumed four or five beers. A check of the

defendant’s driving status revealed that his license was revoked. Afterrequesting that the defendant

step out of the vehicle, the deputy administered several field sobriety tests, including the heel-to-toe

test and the one leg stand. According to the deputy, the defendant was unable to successfully

complete any of the tests. It was the deputy’s opinion that the defendant was driving under the

influence of alcohol. The deputy arrested the defendant and asked the defendant if he wished to take

a blood alcohol test. The defendant refused to submit to a blood alcohol test and was transported

to jail. The deputy never determined whether the defendant’s vehicle was involved in an accident.

Mark Smith testified on behalf of the defendant. The defendant was pulled over in front of

the witness’s house. The witness observed the defendant after he had been placed under arrest. The

deputy allowed the defendant to leave his electrical tools with the witness. According to Smith, the

defendant did not appear to be under the influence. The witness testified that he had known the

defendant since he was a child.

The defendant testified at trial that, on the day he was arrested, he had consumed

approximately four beers during a four or five-hour period. He also admitted to having an open

container of beer in his vehicle. The defendant did not recall performing any field sobriety tests.

He denied crossing over any lines prior to being stopped by the deputy and denied that he was

intoxicated.
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Analysis

I. Sufficiency of the Evidence

In the defendant’s Statement of Issues, he lists sufficiency of the evidence as one of the issues

on appeal. However, there is no further mention ofsufficiency in his brief. He has waived appellate

review of the sufficiency issue by failing to provide any argument, citation to the record, or citation

to legal authority. See Tenn. Ct. Crim. App. R. 10(b). In any event, after reviewing the record, we

conclude that there is sufficient evidence to support the defendant’s convictions. When a defendant

challenges the sufficiency of the evidence, the standard of review is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 319 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992). 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. Elkins, 102 S.W.3d 578, 581 (Tenn.

2003). This Court will not re-weigh the evidence, reevaluate the evidence, or substitute its

evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim.

App. 1995). Furthermore, in a criminal trial, great weight is given to the result reached by the jury.

State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

Once approved by the trial court, a jury verdict accredits the witnesses presented by the State

and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

The credibility of witnesses, the weight to be given their testimony, and the reconciliation of

conflicts in the proof are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

A jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and

raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant

then bears the burden of overcoming this presumption of guilt on appeal. State v. Black, 815 S.W.2d

166, 175 (Tenn. 1991).

Deputy Hooper observed the defendant driving erratically and initiated a stop. As the deputy

approached the vehicle, he noticed an open container of alcohol in the floorboard of the vehicle. The

defendant admitted to consuming four or five beers. The deputy testified that there was a smell of

alcohol coming from the defendant and that the defendant had bloodshot eyes. In Deputy Hooper’s

opinion, the defendant failed the heel-to-toe test and the one leg stand. The jury obviously chose to

credit the testimony of the deputy over that of the defendant and Smith. As to the driving on a

revoked license conviction, the defendant admitted on the day of this incident that his license was

revoked. After reviewing the record, we conclude that there was sufficient evidence to support the

convictions for driving under the influence and driving on a revoked license.
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II. Reasonable Suspicion

The defendant contends that the trial court erred by denying his motion to suppress because

the stop of the defendant’s vehicle was not based on reasonable suspicion. The findings of fact made

by the trial court at the hearing on a motion to suppress are binding upon this Court unless the

evidence contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839

(Tenn. 2001). The prevailing party is entitled to the strongest legitimate view of the evidence and

all reasonable and legitimate inferences that may be drawn from that evidence. State v. Hicks, 55

S.W.3d 515, 521 (Tenn. 2001). However, the application of the law to the facts found by the trial

court are questions of law that this Court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423

(Tenn. 2000). Absent a showing by the defendant that the evidence preponderates against the

judgment of the trial court, this Court must defer to the ruling of the trial court. State v. Cribbs, 967

S.W.2d 773, 795 (Tenn.1998).

The Fourth Amendment to the United States Constitution grants the right to be secure from

unreasonable searches and seizures and prohibits the issuance of warrants without probable cause.

Article I, § 7 of the Tennessee Constitution is identical in purpose and intent with the Fourth

Amendment. State v. Troxell, 78 S.W.3d 866, 870 (Tenn. 2002). Under both constitutions, a

warrantless search or seizure is presumed to be unreasonable, and the resulting evidence is subject

to suppression unless the State demonstrates that the search or seizure was conducted pursuant to

one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215,

218 (Tenn. 2000).

These constitutional protections against unreasonable searches and seizures also apply to

vehicles. Troxell, 78 S.W.3d at 870-71. In order to stop a vehicle, a law enforcement deputy must

have probable cause or reasonable suspicion supported by specific and articulable facts to believe

an offense has been or is about to be committed. State v. Randolph, 74 S.W.3d 330, 334 (Tenn.

2002). In determining whether reasonable suspicion existed for the stop, a court must consider the

totality of the circumstances. Binette, 33 S.W.3d at 219. 

When a traffic stop is an investigatorystop, the scope of the deputy’s actions must reasonably

relate to the circumstances which prompted the stop; the detention must last no longer than necessary

to effectuate the purpose of the stop. Troxell, 78 S.W.3d at 871. The officer must employ the least

intrusive means reasonably available to investigate his or her suspicions in a short period of time.

Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). The proper inquiry

is whether the police diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly. State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). 

The defendant maintains that his vehicle was stopped based solely on the content of an

anonymous phone call reporting a hit and run accident. However, Deputy Hooper’s testimony at the

suppression hearing contradicts this assertion by the defendant. Hooper testified at the suppression

hearing that he followed the defendant’s vehicle for approximately one or two miles before initiating

the stop. The deputy testified that the stop of the defendant’s vehicle was based on the deputy’s
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observations of the defendant’s vehicle crossing the double yellow line, then weaving all the way

back across the road, and crossing the white line on several occasions. The trial court found the

deputy’s testimony to be credible and found that there was reasonable suspicion for the stop.

Nothing in the record preponderates against the findings of the trial court or the court’s denial of the

motion to suppress. This issue is without merit.

III. Horizontal Gaze Nystagmus Test 

The defendant next contends that the deputy’s mention of the horizontal gaze nystagmus

(HGN) test during his testimony entitled the defendant to a mistrial. During the State’s direct

examination of Deputy Hooper, the following colloquy occurred.

Q. What did you have him do field sobriety-wise?

A. I had him do three tasks, the first one was a - - it’s a horizontal gaze

nystagmus test.

Q. Well, why don’t we - - let me ask you this: Did you have him do any physical

tests?

A. Yes.

The HGN test was not mentioned in the presence of the jury at any other time, and the deputy never

testified as to the results of the test. Later, during the deputy’s testimony, the defendant objected,

and the jury was excused. The defendant asked the court for a mistrial based on the witness’s earlier

mention of the HGN test. The court denied the defendant’s request for a mistrial. 

The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn

that decision absent an abuse of discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App.

1997). The burden of establishing the necessity for mistrial lies with the party seeking it. State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this determination, no abstract

formula should be mechanically applied, and all circumstances should be taken into account. State

v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

Immediately following the deputy’s reference to the HGN test, the State moved on to the

other tests performed by the deputy. There was no suggestion of the results of the HGN test and no

further mention of the test in front of the jury. The deputy testified that his opinion of the

defendant’s intoxication was based on the defendant’s bloodshot eyes, the odor of alcohol, and his

failure to properly perform the one leg stand and the heel-to-toe test. In view of these matters, as

well as the overwhelming evidence of guilt, we conclude that the reference to the HGN test was

harmless and the defendant was not unduly prejudiced by the deputy’s brief remark. This issue is

without merit.
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Conclusion

Based on the foregoing reasoning and the record as a whole, the judgments of the trial court

are affirmed.

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE