FILED

May 27, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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

)

Appellant. ) (Direct Appeal - DUI)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID H. KING JOHN KNOX WALKUP

KING, TURNBOW & BRISBY Attorney General and Reporter

203 Third Avenue South

Franklin, TN 37064 TIMOTHY BEHAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

JOE D. BAUGH, JR.

District Attorney General

JEFF BURKS

Assistant District Attorney

P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On April 14, 1997, the Williamson County Grand Jury indicted Appellant

Joel P. Guilds for driving under the influence of an intoxicant, second offense,

and for driving on a revoked license. On October 15, 1997, Appellant filed a

motion to have the two charges tried separately. The trial court initially denied

the motion, but after Appellant’s trial began on October 29, 1997, the trial court

granted the motion to sever. Later that sam e day, a Williamson County jury

convicted Appellant of driving under the influence of an intoxicant. On February

13, 1998, the trial court imposed a sentence of eleven months and twenty-nine

days. Appellant challenges his conviction, raising the following issues:

1) whether Appellant was prejudiced by the late severance of the charges;

2) whether the trial court abused its discretion when it allowed a witness

to testify who had not been disclosed to Appellant until the day of trial;

3) whether the evidence was sufficient to support Appellant’s conviction;

and

4) whether a comment by the prosecutor during closing argument

constituted prosecutorial misconduct that deprived Appellant of a fair trial;

After a review of the record, we affirm the judgment of the trial court.

I. FACTS

Officer Daniel Aloy of the Franklin, Tennessee Police Department testified

that while he was responding to a call in downtown Franklin on February 13,

1997, he heard a loud crash. Aloy then turned around and saw that a car had

struck a large flowerpot and a light pole a short distance away. When Aloy

arrived at 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 Appellant and observed that
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Appellant had slurred speech, appeared to be only semi-conscious, and had

difficulty answering questions. 

Officer Frank Soto of the Franklin Police Department testified that he

arrived at the accident soon after it occurred and he “took over the scene.”

Shortly after Soto approached Appellant, Soto recognized him because Soto had

known Appellant for approximately five or six years. Soto smelled the odor of

alcohol coming from both the inside of the car and from Appellant’s person and

he saw a beer can on the floor of the car. Soto also observed that Appellant had

slurred speech and glassy, red eyes. Soto further observed that Appellant

appeared to have a head injury and that the windshield of Appellant’s car had

been broken by what Soto guessed was probably Appellant’s head. 

Soto testified that shortly after he arrived at the scene, Appellant was

transported to the hospital by some paramedics. Soto subsequently met

Appellant at the hospital and asked him to take a blood alcohol test. When

Appellant refused, Soto asked him whether he had been drinking. Appellant then

responded, “You know me.” Appellant then stated that he had fallen asleep while

he was driving his vehicle.

Soto testified that he did not ask Appellant to take a breath test for alcohol

because the breathalyser was at the Williamson County Jail and Appellant could

not be transported there because of his medical condition. Soto also testified that

he did not have Appellant perform any field sobriety tests because Appellant was

injured. Soto admitted that he could not be sure whether Appellant’s slurred

speech and behavior were due to intoxication or to injury. 
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Nancy Steagal testified that she was one of the paramedics who treated

Appellant at the scene of the accident. When Steagal made contact with

Appellant, he complained of pain in his back, neck, wrist, and knee. Steagal

observed that Appellant’s words were not plain and sounded “sluggish.” Steagal

also noticed that an odor of alcohol was coming from the car and the odor

became stronger when she approached Appellant. Steagal also testified that

Appellant was awake, alert, and oriented; he denied drinking alcohol and stated

that he had fallen asleep at the wheel. 

Doctor Paul Hagan testified that he was the emergency room physician

who treated Appellant when Appellant was brought to the hospital. When Dr.

Hagan made contact with Appellant, Appellant complained of pain in his cheek,

jaw, left knee, and right arm. Other than the pain in his cheek and jaw, Appellant

made no other complaint of any head injury. Dr. Hagan observed that Appellant

had a strong odor of alcohol on his person and had slurred speech and other

symptoms of intoxication such as nystagmus of the eyes. 

Dr. Hagan testified that the radiology report indicated that Appellant had

suffered an injury to the head. Dr. Hagan then acknowledged that nystagmus

could be caused by a head injury, but he stated that he had never seen the type

of nystagmus that Appellant had in a head injury case. Dr. Hagan stated that in

his opinion, a patient with nystagmus similar to that of Appellant would usually be

unconscious. 
1However, we do caution trial courts that motions to sever offenses for trial should be resolved

prior to the com me nceme nt of trial and the im panelling o f the ju ry.

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II. SEVERANCE

Appellant contends that he was prejudiced by the late severance of the

charge for driving under the influence from the charge for driving on a revoked

license. We find otherwise.

The record indicates that after the trial court informed the jury about the

nature of the case, a jury-out hearing was conducted. During this hearing, the

court granted Appellant’s motion to sever the two charges. When the jury

returned, the court instructed the jury that this case only involved a charge for

driving under the influence. The court further instructed the jury that they should

disregard the second charge. 

We conclude that Appellant has failed to show that he was prejudiced by

the late severance of the charges. The record indicates that the charges were

severed before any evidence was introduced about the charge of driving on a

revoked license. Further, the trial court clearly instructed the jury that it should

only be concerned with the charge of driving under the influence and it should

disregard the other charge. “It is well-established that jurors are presumed to

follow the instructions given by the trial judge.” State v. Cribbs, 967 S.W.2d 773,

784 (Tenn. 1998). See also State v. Mathis, 969 S.W.2d 418, 422 (Tenn. Crim.

App. 1997). This issue has no merit.1
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III. UNDISCLOSED WITNESS

Appellant contends that the trial court abused its discretion when it allowed

a witness to testify who had not been disclosed to the defense until the day of

trial. We again must disagree.

The record indicates that the State failed to include Nancy Steagal’s name

on the indictment as required by Tennessee Code Annotated section 40-17-106,

which provides:

It is the duty of the district attorney general to endorse on each indictment

or presentment, at the term at which the same is found, the names of such

witnesses as the district attorney general intends shall be summoned in

the cause, and sign such indictment or presentment name thereto.

Tenn. Code Ann. 40-17-106 (1997). However, it is well-established that the duty

created by this statute is merely directory, not mandatory. State v. Harris, 839

S.W.2d 54, 69 (Tenn. 1992); State v. Kendricks, 947 S.W.2d 875, 947 (Tenn.

Crim. App. 1996). The State’s failure to include a witness’ name on the

indictment will not automatically disqualify the witness from testifying. Harris, 839

S.W.2d at 69; Kendricks, 947 S.W .2d at 947. Rather, a defendant will be entitled

to relief for nondisclosure only if he or she can demonstrate prejudice, bad faith,

or undue advantage. Harris, 839 S.W .2d at 69; Kendricks, 947 S.W.2d at 947.

The determination of whether to allow the witness to testify is left to the sound

discretion of the trial court. Kendricks, 947 S.W .2d at 947; State v. Underwood,

669 S.W .2d 700, 703 (Tenn. Crim. App. 1984). 

Here, Appellant has not even alleged that the State acted in bad faith or

had an undue advantage because of the failure to disclose Steagal’s identity until
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the day of trial. Indeed, neither of these allegations would be supported by the

record. Further, althoughAppellant complains that he was “completely surprised”

by Steagal’s presence as a witness, he has failed to indicate how he was

prejudiced by that surprise. Indeed, the record indicates that when Appellant’s

counsel informed the trial court that he had not previously been notified that

Steagal would be a witness, the court gave him an opportunity to interview

Steagal before she testified and he took advantage of that opportunity. Further,

Appellant’s counsel subsequently conducted a very able cross-examination of

Steagal. In this case, Appellant has simply failed to indicate anything that he

could or would have done differently if he had known about Steagal earlier. This

issue has no merit.

IV. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to support his

conviction for driving under the influence of an intoxicant. We disagree.

When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a presumption of innocence, a jury verdict removes this

presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demonstrate the insufficiency of the convicting evidence. Id. On appeal, “the
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[S]tate is entitled to the strongest legitimate view of the evidence as well as all

reasonable and legitimate inferences that may be drawn therefrom.” Id. Where

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from reweighing or reconsidering the evidence. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Procedure

provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyond a reasonable doubt.”

In order to establish that Appellant had committed the offense at issue

here, the State was required to prove that Appellant drove his vehicle on a public

street while he was “[u]nder the influence of any intoxicant, marijuana, narcotic

drug, or drug producing stimulating effects on the central nervous system.” Tenn.

Code Ann. § 55-10-401(a)(1) (1998). Appellant concedes that the State proved

that he operated his vehicle on a public street. However, Appellant contends that

the State did not prove that he was under the influence of an intoxicant (alcohol)

when he did so.
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Appellant basically argues that because the case is circum stantial, the jury

could not have found that the facts presented excluded every other reasonable

theory or hypothesis except that of guilt. Specifically, Appellant argues that the

jury could have accepted his theory that his slurred speech and nystagmus were

actually caused by his head injury rather than intoxication. It is true that where

the evidence is entirely circumstantial, the evidence must allow the jury to

exclude every other reasonable theory or hypothesis except that of guilt. State

v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). Of course, “[l]ike all other

fact questions, the determination of whether all reasonable theories or

hypotheses are excluded by the evidence is primarily a jury question.” Id. 

We conclude that the evidence, when viewed in the light most favorable to

the State, was sufficient for a rational jury to exclude Appellant’s theory and find

beyond a reasonable doubt that Appellant had committed the offense of driving

under the influence of an intoxicant. The evidence showed that Appellant was

involved in a single vehicle accident in which he drove his car off the road and

into a flowerpot and light pole. Further, Soto testified that he found a beer can

in Appellant’s car. Soto and Steagal both testified that there was an odor of

alcohol coming from Appellant’s car. Soto, Steagal, and Hagan all testified that

they could smell alcohol on Appellant’s person. Aloy, Soto, Hagan, and Steagal

all described Appellant’s speech as either slurred or sluggish and Aloy testified

that Appellant was only semi-conscious and had difficulty answering questions.

Soto testified that Appellant had red, glassy eyes. Dr. Hagan testified that

Appellant had nystagmus of the eyes, which was consistent with intoxication.

Although Dr. Hagan testified that nystagmus could be caused by a head injury,

he also testified that Appellant’s head injuries did not appear to be serious and
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further, he had never seen Appellant’s type of nystagmus in a head injury case.

Dr. Hagan also stated that someone with Appellant’s type of nystagmus would

usually be unconscious. When Soto asked Appellant to take a blood alcohol test,

Appellant refused. Finally, when Soto asked Appellant whether he had been

drinking, Appellant responded, “You know me.”

In this case, Appellant essentially asks us to reconsider the evidence and

substitute a verdict of not guilty in exchange for the verdict found by the jury.

That is not our function. Instead, we conclude that a rational jury could have

found beyond a reasonable doubt that Appellant had committed the offense of

driving under the influence of an intoxicant. See Tenn. R. App. P. 13(e). This

issue has no merit.

 

V. PROSECUTORIAL MISCONDUCT

Appellant contends that he was denied a fair trial when the prosecutor

referred to him as a “clown” during his closing argument. We disagree.

The record indicates that during his closing argument, the prosecutor made

the following comment:

Now we can talk all day about what evidence is circumstantial and what’s

direct. I submit that there is a great deal of direct evidence. The officers

saw the accident. They’re standing right across the street from it when this

clown, driving and saying that he went to sleep, drives right into a lamp

post at 1:30 or so in the morning and then states, although everyone who

testified smelled alcohol, that he hadn’t been drinking. And he refuses a

test. 
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While we agree with Appellant that the reference to him as a “clown” was

undoubtably improper, we conclude that Appellant is not entitled to a new trial

because of it.

“Where argument is found to be improper the established test for

determining whether there is reversible error is whether the improper conduct

could have affected the verdict to the prejudice of the defendant.” State v.

Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998) (citation and internal quotations

omitted). There are five factors that must be examined in order to make this

determination: 1) the conduct com plained of, viewed in light of the facts and

circumstances of the case; 2) the curative measures undertaken by the court

and the prosecution; 3) the intent of the prosecutor in making the improper

statement; 4) the cumulative effect of the improper conduct and any other errors

in the record; and 5) the relative strength or weakness of the case. Id. (citations

omitted).

Initially, we note that Appellant waived this issue by filing 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. Crim. App. 1997); State v.

Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). However, we conclude that

Appellant is not entitled to relief even on the merits. First, the conduct

complained of, when viewed in light of the facts and circumstances of the case,

indicates that the jury would not have been prejudiced by the use of the term

“clown.” The prosecutor’s use of the term “clown” was only an isolated incident

and it was far less inflammatory than other comments that the Tennessee

Supreme Court has found to be harmless error. See Cauthern, 967 S.W.2d at
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736–38 (prosecutor’s reference to defendant as “the evil one” was harmless

error); State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991) (prosecutor’s two

references to defendant as a “rabid dog” were harmless errors); State v. Miller,

771 S.W.2d 401, 405 (Tenn. 1989) (prosecutor’s reference to defendant as

“perverted” was harmless error). Second, although no curative measures were

taken by the trial court or the prosecution, this was primarily because the defense

failed to object. Third, it appears that the intent of the prosecutor was to point out

the inconsistencies between the defense theory of the case and the evidence that

was presented at trial. Fourth, the cumulative effect of this error and any other

errors was not sufficient to deny Appellant a fair trial. Fifth, the State’s case was

fairly strong. Under these circumstances, we conclude that the prosecutor’s

improper comment did not affect the verdict to the prejudice of the defendant.

This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

DAVID H. WELLES, JUDGE