# FILED May 27, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CC-00182 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON. HENRY DENMARK BELL JOEL GUILDS, ) JUDGE ) Appe llant. ) (Direct Ap peal - D UI)

FOR THE APPELLANT : FOR THE APPELLEE : DAVID H. KING JOHN KNOX WALKUP KING, TURNBOW & BRISBY Attorney Generaland Reporter 203 T hird Aven ue Sou th Franklin, TN 37064 TIMOTHY BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JOE D. BA UGH, JR. Distri ct Attorney General JEFF BURKS Assistant Distri ct Attorney P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On April 14, 19 97, th e William son County Grand Jury indicted Appellant Joel P. Gu ilds for d riving un der the in fluence of an intoxicant, second offense, and for drivi ng on a re voked license. On October 15, 1997, Appellan t fil ed a motion to have th e two ch arges tried separa tely. T h e trialcourt initially denied the motion, bu t after Appellant’s trial began on Octob er 29, 1997, the trial court granted the mo ti on to sever. Later that sam e day, a W illiamson Cou nty jury convictedAppellant of drivi ng under the influence of an intoxica nt. On Febru ary 13, 1998, the t rial cour t imposed a sentence of eleven months and twenty-ni ne days. Appellant chall enges his conviction, raising the fol lowing issues: 1) whether Appell ant was prejudi ced by the l ate severance of the charges; 2 ) wh ether the tri al court abused its di scretion when it al lowed a witness to testify w ho ha d not b een d isclose d to Ap pellan t until the day of tr ial; 3) whether t he evide nce wa s suffi cient to support Appell ant’s convi ction; and 4) whether a comment by the pro secutor duri ng closing ar gument constit uted prosecutori al misconduct t hat deprived Appellant of a fair trial; After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

Officer Daniel Aloy

of the Frankl in, Tennessee Poli ce Department test ified thatwhile he was r

espo nding to a call i n downtown Frankli n on February 13, 1997, he heard a loud c rash. Aloy then turned ar ound and saw that a car had strucka large fl owerpot and a li ght pole a shor t distan ce away. Whe n Alo y arrivedat the scene, he saw that Appellant was in the driver’s seat and was the only person in the car. Aloy then made contact with Appel lantand observed that-3-

Appellant

h ad sl urred speech, ap peared to be onl y semi-consci ous, and had difficulty answ ering qu estions.

Officer Frank Soto of t he Franklin Police Depart ment testi fied that he
a rriv ed at the acc ident soo n after it occu rred and he “took over the s cene.” Shor tly after

Soto approached Appellant, Soto recognized him because Soto had known Appellant f

or app r oximately

five or six year

s. Soto smell ed the odor of alcohol coming from both t he inside of the car and f rom Appe llant’s person and he saw a beercan on the floor of th e car. So to also observed that Appell ant had slu rred speech a nd gla ssy, red eyes. Soto fur ther observed that

Ap pellan t appeared to have a head i njury and t hat the winds hield of App ellant’s ca r had been b roken b y what S oto gue ssed w as prob ably App ellant’s hea d.

Soto testified that s hortly after he ar rived at

the scene, Appel lant was transported to the hospi tal by some paramedi cs. Soto subsequent ly met Appe ll ant at the hos pital and a sked h im to take a blood a lcohol tes t. Whe n Appellant

refused, Soto asked him whether he had been drinki ng. Appellant then responded, “You know me.” Appell ant then stated thathe ha d fallen aslee p while he was drivi ng his vehi cle.

Soto testified that he di d not ask Appell ant to take a breath test for alcohol because the breathalyser was at t he Williamson Coun ty Jail and Appe llant co uld not be transported there because of his medical condition. Soto also testifi ed that he did not have A ppellant perform any field so briety tests because Appellant was injured. Soto ad mitted tha t he could not be su re wheth er App ellant’ s slurred speec h and b ehavior w ere due to intoxication or to injury.-4- Nancy Steagal testif ied that sh e was one of the paramedics who treated Appellant

at the s cene of the a ccid ent. Wh en Stea gal ma de con tact with Ap pellant, he complained of pai n in his back, neck, wrist, and knee. Steagal observed that Appell ant’s words were not plai n and sounded “sluggis h.” Steagal also not ice d th at a n odo r of alcoholwas comi ng f rom t he car and the odor beca me stronge r when s he app roache d Appe llant. Steag al also testi fie d that Appellant

was awake, aler

t, and oriented; he denied dri nking alcoholand stated that he ha d fallen as leep at the wheel.

DoctorPaul H agan te stifi ed that he was t he emergency room physic ian who treated Appe llant when Ap pellant was bro ught to the hos pital. Whe n Dr. Hagan made contact with Appellant, Appellant complained of pain in hi s cheek, jaw, left k nee, and right arm. Other than the pain in hi s cheekand jaw, Appell ant made no other

complaint of

any head inj ury. Dr. Hagan observed that Appellant had a strong odor of alcoholon his person and h ad slu rred speech and ot her sympto ms of into xication su ch as ny stagm us of the e yes.

Dr. Hagan testif ied that t he radiology report i ndicat ed th at Appellant had suffered an injury

to the head. Dr. Hagan then acknowl edged thatny stagmus could be caused by a head inj ury, but he stated that he had never seen the type of nystagmus that Appell ant had in ahead injury ca se. Dr . Hag an sta ted tha t in his opinion, a patient

with nystagmus similar to that o f Appe llant wo uld us ually be
uncon scious.1 However, we do caution trial courts that

motions to sever

offenses for t rial sh ould be resolved prior to the com me nce me nt of tr ial and the im pan elling o f the ju ry. -5- II.SEVERANCE
Appellant

contends tha t he was prejud iced by the late sever ance of the charge for dri ving under t he i n fluence f rom the charge for drivi ng on a revoked license. We find otherwise.

The record indi cates that after t he trialcourt inf ormed the jury

about the
na ture of the case, a jury- out hearing was conducted. Duri ng this hear ing , th e court granted Ap pellant’s motion to s ever the two ch arges. W hen the jury returned, the court instructed th e jury that this case on ly involve d a charge f or drivi ng under the in fluence. The court fur therinstructed the jury that they sh ould disrega rd the se cond c harge.

We conclude that

Appellant has

failed to show that he was prejudi ced by the late sever

ance of the char

ges. The record i ndicates t hat the charg es were seve red b efore any evi dence was intr oduced about the char ge of driv ing on a revoked license. Further, the trial cou rt clearly instru ct ed the jury that it shou ld only be concerned with the ch arge o f driv ing un der the influen ce an d it sho uld disregard the other charge . “It is well -establish ed that juro rs are pre sume d to follow the inst ructions given by t he trial judge.” State v. Cribbs , 967 S.W.2d 773, 784 (Tenn. 1998). See also State v. Math is , 969 S.W.2d 418, 422 (Ten n. C ri m. App. 19 97). Th is issue ha s no m erit. 1-6- III . UNDISCLOSED WITNES S
Appellant

contends that the trial cou rt abus ed its d iscretio n whe n it allowed
a witness to testif

y who had n ot been discl osed to the defense untilthe day of trial . We again must disagree.

The record indicates thattheState f ail ed t o in clu de Na ncy Ste agal ’s name on the indi ctment as requi red byTennessee Code Annotated secti on 40-17-106, which provides: It is the duty of

the dist rict at

torney gener

al to endorse on each i ndictment or presentment, at

the term at whi ch the same is found, the names of such witnessesas the di stri ct attorn ey gen eral inte nds s hall be sum mon ed in the cause, and si gn such indict ment or presentment name thereto. Tenn. Code Ann. 40-17-106 (1997 ). However, it is well-established that the du ty created by this statute is mere ly directory, no t mand atory. State v. Harris , 839 S.W.2d 54, 6 9 (Ten n. 1992 ); State v. Kendricks , 947 S.W.2d 875, 947 (Tenn. Cri m. App. 1996). The State’s fai lure to i nc lude a wit ness’ name on the indict ment will not a utom atically disqualify the witness fro m testifying

. Harris , 839 S.W.2d at 69; Kendricks , 947 S.W .2d at 947
. Rather, a defendant willbe entitl ed to relief for non disclosu re only if he o r she can demo nstrate prejudice, bad faith , or undue advanta ge. Harris , 839 S.W .2d at 69; Kendricks , 947 S.W.2d at 947. Th e determinati on of whether to allow th e witness to testif y is lef t to the s ou n d discreti on of the trial cou rt. Kendricks , 947 S.W .2d at 947 ; State v. Underwood , 669 S.W .2d 700 , 703 (T enn. C rim. App . 1984).
Here, A ppell ant has not even alleged t hat the State acted in bad f aith or had an undue advantage because ofthe failu re to dis close Steag al’s iden tity until-7-

the da y of trial. Indeed, nei ther of t hese allegat ions would be suppor ted by the record. Further, a lthough Appellant complains that

he was “completel y surpri sed” by Steagal’s presence as a wit nes s , he has fai led to i ndicate how he was prejudicedby that surprise. I ndeed, the record i ndicatesthat wh en Ap pellan t’s
coun sel informed the trialcourt that he had not previ ously been not ifiedtha t Steagal would be a w itness, the court gave him an opportuni ty to i ntervi ew Steagal before she testifi ed and he took advanta ge of that oppo rtunity. Further, Appe llant’s counsel subsequent ly cond ucted a very abl e cross-examinat ion of Steag al. In this case , A p pellant has simply failed to indicate anything t hat he could or wou ld have done differen tly if he had known abou t Steag al earlie r. This issue ha s no m erit.

IV. SUFFICI ENCY OF THE EVI DENCE
Appellant

contends that

the evidence was insu fficient to supp ort his convicti on for driving under t he influ ence of an intoxicant. We disagree.

When an a ppellant challenges t he sufficiency of the evidence , this Court is obliged to review that chal lenge according to certai n well-settl ed principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’s wi tnesses and resolves all conflic ts in t he testimony i n favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94). Although an accused is originally cloaked with a p resump tion of innocenc e, a jury verdictremo ves this presumption and re place s it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appe al, the bu rden of proof rests wit h Appellant

to demo nstrate the insufficie ncy of th e convict ing eviden ce. Id. On appeal, “t he-8-

[S]tate is entitled to th e strong est legiti mate view of the evid ence as we ll as all
reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the suffic iency of t he evidence i s contested on appeal, t he relevant question for the reviewing court is wh ether an y rational trier o f fact c ould have f ound the accused guilty

of every e lement of t he offense beyond a r eason able do ubt. Jackson v . V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducti ng our evaluat ion of theconvicti ng ev idenc e, this C ourt is precluded from rew eighing o r recons idering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cri m. App. 1996). Moreover, th i s Court may not substitute its own i nferences “f or those drawn by the tri er of fact from circumstant ial evidence.” State v . Matt hews , 805 S.W.2 d 776 , 77 9 (Te nn. Cri m. App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury shall be set aside if the evi dence is insuf ficien t to support the findi ngs by the trier of fact beyo nd a rea sonab le doub t.”

In order to establish t hat Appellant had committed the of fense at issu e here, the Sta te was require d to pro ve that A ppella nt drov e his ve hicle o n a pu blic street while he w as “[u]nd er the influe nce of an y intoxicant, marijuana, narco tic drug, or drug producing stimulat ing effec ts on the centralnervous system.” Tenn. Code Ann. § 55-10-401( a)(1) (1998) . Appellant concedes that

the State pr

oved thathe operated hi s vehicl e on a public st reet. However , Appellant contends that the State did not

prove that

he was under the i nfluence of an intoxi cant (alcoh ol) when he did so.-9- Appellant

basically argues th at because the case is circum stantial, the jury could not havefound that the facts presented excluded eve ry other re ason able theory or hypothesi s except that of guil t. Specif icall y, Appell ant argues that the jury could have a ccepted his the ory that his slurred spe ech and n ystagmus were actuall y caused by his head i njury rather than i ntoxicat ion. It is truethat where the eviden ce is en tir ely circu mstan tial, the eviden ce mu st allow the jury to exclude every othe r reason able theo ry or hypo thesis exc ept that of g uilt. State
v. Ball , 973 S.W.2 d 288 , 29 2 (Te nn. Cri m. App. 1998). Of course, “[ l]ike all othe r fact ques tions, th e dete rmina tion of w hethe r all reas onab le theo rie s or hypothese s are excluded by the evidence is primarily a jury question.” Id.

We conclude that the evidence, when vi ewed in the l ightmost fav orable to the State, was suf

ficien t for a rationa l jury to exclude Appell ant’s th eory and fi nd beyond a reas onab le doubt that Appellant had committed the offens e of driv ing under the infl uence of an intoxicant. The evidence sho wed that Appell ant was i nvolved in a single vehicle acci dent in whi ch he drove his car off t he road and into a flowerpot

an d light po le. Furt her, Soto testifi ed that he found a beer can in Appella nt’s car. Soto and Steagal both testif ied that t here was an odor of alcohol comin g from A ppellant’s car. Soto, Steagal , and Hagan all testif ied that theycould smell alcoholon Appellant’ s person. Aloy, Soto, Hagan, and Steagal all described Appellant’ s speech as eit her slurr ed or sluggi sh and Aloy test ified thatAppellant was

only sem i-conscio us and had difficu lty answering questions. Soto testified that Appel lant had red, gla ssy eyes. Dr . Hagan testi fied that Appellant

had nystagmus of t he eyes, which was consistent with int oxicati on. Although Dr. Hagan testifi ed that nystagmus could be caused by a head injury, he also test ifiedthatAppellant’ s head injur ies did not appear to be ser ious and-10-

further, he had never seen Appel lant’s type of ny

stagmus in a head i njury case. Dr. Hagan also stated that someone wit h Appellant ’s typ e of nys tagm us wo uld
usua lly be unconscious. When Soto asked Appellant t o take a blood alc ohol test, Appellant

refused. Fi nally, when Soto asked Appell ant whether he had been drinking, A ppellant re spond ed, “You know m e.”

In this cas e, App ellant e ssen tially asks us to recon sider the evidence and substitute a verdict of n ot guilty in exc hange fo r the ve rdict found by the jury. That is notour functi on. Inste ad, we conclude t hat a rati onal jury could ha v e found be yond a re asonable doubt t hat Appellant had committed the of fense of drivi ng unde r the influ ence of an in toxic ant. See Te nn. R . App. P . 13(e) . This issue ha s no m erit.

V. PROSECUT ORIAL MISCONDUCT
Appellant

conte nds th at he w as de nied a fair tria l when the prosecutor referred to him as a “cl own” during hi s closing ar gument. We disagree.

The record in dicates that during hi s closing ar gument, the pros ecutor made the followin g com ment: Now we ca n talk a ll day ab out wh at evide nce is c ircum stantia l and w hat’s direct. I s ubm it that ther e is a great

deal of direct evidence. T he officers saw the accid ent. They’re standing right across thestreet fro m it wh en this clown, drivi ng and saying t hat he went to sle ep, drivesri ght int o a l amp post at 1:30 or s o in the morni ng and then states, alth ough everyone who testif ied smelled alcohol, that he hadn’ t been drink ing. And he refuses a test.-11-

W hile we agree w ith Appellant that the re ference to him as a “clown” was und oubta bly improper, we conc lude that Appellant i s not enti tled to a new trial becau se of it.

“ Wh ere argument is found to be improper the establ ished t est fo r determiningwhether ther e is rever

sible err or is whet her the i mproper conduct could have affected the verdict to the prejudice o f the defendan t.” S tate v
. Cauthern , 967 S.W.2d 726, 737 (Tenn. 1998) (citat ion and internal quotat ions omitted). There are fi ve f actors th at mu st be e xamin ed in o rder to mak e this determinati on: 1) the con duct com plained o f, viewed in ligh t of the factsan d circumstancesof the case; 2) the curat ive m ea sures und ertaken by the c ourt and the prosecut ion; 3) t he intent of the prosec utor in maki ng t he im proper statem ent; 4) the cumulative effect of the imprope r conduct an d any other erro rs in the record; and 5)the relat ive str ength or weakn ess of the case. Id. (citat ions omitted).

Init ially, we note that Appellant waived this i ssue by fi ling to make a contemporaneous objection at trial. State v. Keen , 926 S.W.2d 727, 736 (Tenn. 1994); State v. Green , 947 S.W .2d 186, 188 (Tenn. Cri m. App. 19 97); State v. Little , 854 S.W.2d 643, 651 (Tenn. Cri m. App. 1992). How ever, we conclude that Appellant

is not entitled to relief even on the merits. First , the conduct complained of, when vi ewed in li ght of thefacts and ci rcumstances of t he case, indicates that the jury w ould no t have bee n prejudiced b y the use of the term “clown.” The prosecutor’ s use of the term “clown” wasonly an is olated i ncident and it was far less inflamm atory than other co mm ents that t he Tenness ee Supr eme Court has found to be harmless er ror. See Cauthern , 967 S.W.2d at-12-

736–38 (prosecutor’s refere nce to defen dant as “the evi l on e” was harmless error); S tate v. Bates , 804 S.W.2d 868, 881 (Tenn. 1991) (pr osecutor’s two references to d efendant as a “rabid dog” we re harmless errors); State v. Miller , 771 S.W.2d 401, 405 (Tenn. 1989) ( prosecutor’ s reference t o defendant as “perverted” was harm less error). Second, alt hough no curative mea sures were taken by the trialcourt or t he prosecuti on, this was primarily because the defense failedto object . Third, it appears thatthe inten t of the prose cutor was to point out the inconsistencies between the defense theory of the case and theevidence that
was presented at trial . Fourth, the cumulati ve effectof this error and any

other
errors was not suff icient to deny Appell ant a fair trial . Fift h, the State’s case was fairly strong. Under thes e circ umstances, we conclud e that th e pros ecuto r’s impropercommen t did n ot affect the verdict to the prejudice of the defe ndant. This issu e has n o merit.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE