# FILED

July 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE ) ) NO. 01C01-9705-CC-00189 Appellee ) ) WILLIAMSON COUN TY v. ) ) Hon. Henry Denmark Bell ROY D. LEACH ) ) (D.U.I.) Appellant. ) )

For the Appellant : For the Appellee : Virginia Lee Story John Knox Walkup 136 Fourth Avenue South Attorney General & Repor ter P.O. Box 1608 Franklin, TN. 37065 Karen M. Ya cuzzo Assistant Attorney Gener al 425 Fifth Avenue North 2nd Floor, Cordell Hul l Building Nashville, TN. 37243-0493 Joseph D. Baugh, Jr. District Attorney General Williamson County Cthse. Suite G-6, P.O. Box 937 Franklin, TN. 37065-0937

OPINION FILED:____________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 Nystagmus is an in voluntar y jerki ng movement of the eye as i t attempts t o focus on a fi xed point or as it mo ves f rom side t o side . The unst ead y mo tion re sults from the b ody’s attem pt to m ainta in orientation a nd balan ce. See State v. Murphy , 953 S.W.2d 200, 202 (Tenn. 1 997)(cit ing State v. Cissne , 865 P.2d 564, 566 ( 1994)). “The t heory behi nd the [HGN] test is that there is a strong corr elati on between the am ount of alcohol a person consu mes and the angle of onset of nystagmus .” Murphy 953 S.W.2d at 202 (quoti ng State v. W itte , 836 P.2d 1110, 11 12 (199 2)(quotin g Carp er & Mc Cam ey, Gaze Nystagmus : Scientific Pr oof of DU I? , 777 Ill. B.J. 146, 147 (1988)) ). 2 OPINION The appellant, Roy D. Leach, appeals as of right his conviction in the Circuit Court of Williamson County. After a bench tr ial, the appellant was c onvicted of driving under the influence of an intoxic ant and was sentenced to elev en (11) months and twenty nine (29) day

s in the county jail. The trial court ordered the sentence to be suspended for a term of probation upon the s ervice of forty eight (48) hours in jail. Additionally, the appell ant’s driver’s li cense was revoked for on e (1) year and he was ordered to pay a three hundr ed and fifty ($350) dollar fine. On appeal, the appellant challenges the sufficiency of the convi cting evidence. We affirm the judgment of the trial court. Around midnight on July 10, 1996, the appellant was st opped by Deputy Deborah Rogers of the Williamson County Sheriff’s Department after she obser ved him weaving in tr

affic with his headlights turned off. Deputy Rogers testified that she approached the appellant’s truc k and noticed an odor of alcohol on h is breath. She informed the appellant that she had noti ced him veering in the road and he admitted that he had been drinking alc oholic beverages earl ier in the evening. Deputy Rogers conducted three field sobriety tests on the appellant. The first test was the horizont

al gaze nystagmus (“HGN”) test in w hich the appellant was required to follow the movement of the deputy’s finger with his eyes. 1 According to Deputy Rogers, the appel lant failed the test because he coul d not follow the movement of her finger. Instead, hi s eyes made jerking mov ements and displayed signs of intoxication. Deputy Rogers prov

ided the only testimony concerning the appellant’s HGN test. Although not raised by either party on appeal, our supreme court has recently3

held that testimony concerni ng the HGN test constitutes “scientific, technica l, or other specialized knowledge.” See State v. Murphy , 953 S.W.2d 200, 203 (Tenn. 1997). As such, it must be offered through a q ualified expert witnes s in accordance with R ules 702 and 703 of the Tennessee Rules of Evid ence. Id. In this case, Deputy Rogers was not qualified a s an expert on how alc ohol consumption affects eye nystag mus. However, w e conclude that any error in that regard was harmless beyond a reasonable doubt. Tenn. R. App. P. 36(b); Te nn. R. Crim. P. 52(a). The remaini ng evidence against the appellant was sufficient to w arrant his conviction. The second field sobriety test was the “walk and turn.” Using lines on the parking lot, Deputy Rogers ordered the appell ant to walk heel-to-toe in a straight line for nine steps before turning ar ound and returning in the same manner. Deputy Rogers testified that she explained the test to the appellant; ho wever, he was unable to successfully complete i t. The appellant had trouble maintai ning balance, he failed to walk heel-to-toe, and he stopped several times t o be reminded how to finish the
test. The final test was the “one-leg stand.” Deputy Rogers testified that before administering the test, she followed her customary procedure of asking the susp ect about any existing l eg or back ailments. She s tated that the appellant made no complaints of any existi ng physical problems and attempted three times to complete the test . Accordin g to Deput y Rogers, th e appella nt repea tedly put his other leg down and on one occasion, told the deputy that the test was too difficult. In addition, Deputy Rogers observed the appellant’s demeanor during the fie ld sobriety tests. She testified that the appellant had troub le remembering the test instructions and, at times, appeared both nervous and aloof. She stated that at one point, the appellant began to tur n and walk away w

hile she was explai ning a test to him. From her observati ons, she determined that the appell ant was intoxicated an d arrested him for D.U.I..2 Deputy Rogers testifi ed that t he appellant was wearing a t

ank top, l ong pants, and hi king boots on the evening of the arrest. In contrast, the appellant stated that he was wearing a brown T -shirt, short pants and tenni s shoes. 4 Deputy Rogers testified that she informed the appellant about the optional blood/alcohol and breath examinations. The app ellant, however, declined both tests, claiming that he had not been dr inking. Deputy Rogers initially tes tified that she took the appellant to the local jai l when he refused the blood and br eath exams. She later recalled that she first took the appellant to a nearby hos pital before he was transported to jail. The appellant testified in his ow n defense that he was returning from a fishing trip when Deputy Ro

gers conducted the traffic stop.According to the appellant, he was not driving with his lights off and he never admitted to consuming alcoholic beverages. He further disputed the deputy’s testimony concerning the manne r of his dress 2 and the manner in which she conducted the sobriety test s. The appellant testified that Deputy Rog ers conducted the HGN eye test with a pen instead of her finger, and he stated that the deputy never questioned him about any physical problems before he performed the “one-l eg stand” test. The appellant further testified that after his arrest, Deputy R

ogers transported him to a nearby hospital for a blood test. The appellant sig ned an implied consent form at the hospital, but did not tak e the blood test. He testified that instead, he requested to take a breathaly ser, but the deputy refused to admi nister that exam. The appellant stated that he had not been drinking and th at, in his opinion, he successfully completed each of the field sobriety tests. The appellant’s cousin, Mic hael Carter, testified for the defense that he had been with the appellant from 8:30 p.m. that evening until app roximately midnight. Mr. Carter testified that he did n ot see the appellant drink al coholic beverages and that appellant did not smell of alcohol . He further stated that the appel lant did not show any signs of intoxic

ation when appellant parked a fishing boat between tw o cars that3 Although t his case inv olved a bench t rial,the find ings of th e trial judge who conducted the procee dings ca rry the sam e weight a s a jury verd ict. See State v. T ate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). A guilt y verdi ct rendered by a jury accr

edits t he State’ s witnesses and a pr esumption of guilt replac es the pr esum ption of inno cence

. See State v. Grace , 493 S.W .2d 474, 476 (Tenn. 1973 ). 5 evening. Howev

er, Mr. Carter admitted that he was working on a car while he w

as with the appellant and that he did not closely observ

e appellant’s actions. In considering the abov e evidence, the trial j udge noted that the case turned on the credibility of the w

itnesses. The trial judg e accredited the testimony of Deputy Rogers and found the appellant g uilty of D.U.I.. The appellant contends that the testimo ny of Deputy Rogers alone is insufficient to support his conv iction of D.U.I.. He arg ues that her testimony w as impeached by alleged inconsistencies and by his own testimony at trial. The trial court noted the conflicting testimony between Deputy Rogers and the appellant an d chose to accredit the deputy’s testimony. That determination i s accorded substantial deference on appeal and will no t be reweighed or re-

evaluated by this Cour

t. See State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). 3 From the record, we conc lude that the evidence w as sufficient for a rational tri er of fact to convict the appellant o f D.U.I.. The appellant has failed t o carry his burden of demonstrating otherwis e. Accordingly, the j udgment of the trial court is affirmed.

____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

____________________________ GARY R. WADE, Presiding Judge

____________________________ J. CURWOOD WITT, JR., JUDGE