### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002
STATE OF TENNESSEE v. MARY JEAN MAYRAND
Direct Appeal from the Circuit Court for Rhea County

No. 15467 J. Curtis Smith, Judge

No. E2001-01051-CCA-R3-CD February 19, 2003

A Rhea Coun

ty jury convicted the D efendant of first offense DUI , and the trial court sentenced her to forty -eight

hours’ c onfineme

nt. In this d i rect appeal, the Defendant ar gues (1) that insufficient evidence was presented to support her conviction; (2) that the t rial court err ed by deny

ing her chall enge to one of the jurors during voir dire; (3) that the trial court erred by

denying her pre-trial motion to dismiss the indictments; (4) that the trial court erredby allowing the arresting offi cer to testify as to the c ontents of an alcoholic beverage ; and (5) that her constitutional rights were violated when the State failedto provide her with a “legible” copy of a videotape taken of her at jail following her arrest. We conclude that sufficient evide nce was pre sented to support the Defendant’s conviction
an d t hat the trial court erred by allowing the arresting office r to testify as to the contents of a n alcoho lic beverage, but that the error was harmless. We further conclude that the Defe n dant ha s waived a ll other is sues on ap

peal. We t

herefo re aff irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
Howard L. Upchurc

h, Pikeville, Tennessee, for the Appellant, Mary Jean Mayrand.

Paul G. Summers , Att orney Gene ral and Re porter; E lizabeth B . Marney , Assistan t Attorne y General ; James Michael

Tay lor, Distr ict Attorn

ey Genera l; and W ill Dunn, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

In February

2000, the Rhea County Grand Jury indicted the Defenda nt, Mary Jean May

rand, for driving under the influence (DUI ), possession of a

Schedule II

I controlled substance with intent to sell or deliver, possession of a legend d r ug without a prescription, and violation of the implied consent law. Fo llow ing a trial, a Rhea County jury found the Def end ant gui lt y of f irs t o ffe nse DUI. The trial court sentenced the Defendant to forty -eight hours’ confinement, prohibited he r fro m1 In her brief, the Defendant includes a si xth iss ue in her “STATE ME NT O F THE ISSUES”: whether the t rial court erred by de nying the De fenda nt’s mo tio n for new t rial , in which t

he Defendant

all eged that

unlawf ul cont act occurred between the jurors and witnes ses for the St ate during her tr ial. However, the Defendant prese nts no argument whatso ever to supp ort this issue , and the refore , the issue is w aived

. See Te nn. R. C rim. A pp. 1 0(b ).
-2- driving a motor

vehicle in the State of Tennessee for one y ear, ordered her to perfor

m one hundred hours of community service , and imposed a fine of $350. In this appeal as of right, the Defendant present s the following iss ues for our review: (1) whe ther suf ficient e vidence was pre sented to support the Defe ndant’s con viction; (2) whether the trial court erred by denying the Defendant’s chall enge to one of the juror s during voir dire; (3) whether the trial cour t erred by denying the Defendant’s pre-trial motion to dismiss the indictments; (4) whether the trial court erred by

allowing the arresting officer to testi fy conce rning the contents of an alcoholic drink; and (5) whe ther the Defendant’s constitutional rights were violated when the State failed to provide the Defend ant with
a “legible” copy

of a videotape taken

of the Defendant at the

Rhea Coun

ty ja il following her a

rrest. 1 Having reviewed the rec ord, we a ffirm the judgmen t of the tr ial cour t.

At the Defe

ndant’s tr ial, conducted on January 10, 2001, the following evidence was presented: Eugene Edward L ewis, an employee

of the Rhea

County Ambulance Service , testified that du ring the e arly morning hours of July 10, 1999, he and his partner we re driving in an ambulance to the Rhea Medical Center to pick up a patient. L ewis recalled that it was a clear nig ht and th at th e r oa ds we re dr y. He stated that while driving on Highway 27, he and his partner noticed
a Ford Crown Victoria weaving fr om the left side to the right side of the road , cros sing b oth the yellow line in the center of the road and the white lines on the sides of the r oad. He stated that drivers of oncoming vehicles were f lashing their headlights at the car. Lewis reported that he and his partner followed the car for a f ew miles and decided to contact the police when the vehicle almost struck a guardrail. He stated that they continued driving behind the car until a Te

nnessee state trooper arri ved. Lewis recalled that the trooper pulled between the c ar and the ambulance and followed the car for a couple of miles before activating his emerg ency lights. L ewis stated that he saw the Crown Victoria pull off to the side of the highway , but he and his partner did not stop.
Phillip Dunn t estified that he had been employ ed by the Tenne ssee Highway Patrol since1988 and stated tha

t he had been a stat

e troope r for ten ye ars. He

recalled that he w as trav eling northbound on Highw ay

27 in Rhea

County during t he earl y morning hours of July 10, 1999 when he heard over his police radio a conversation between

an ambulance driver and Rhea County Central Dispatch about a

possible dru nk driver. Dunn stated that he responded to the call, passed the ambulance, and mane

uvered h is vehicle behind the vehicle that had been reported. He recalled that he followed the vehicle for some time and observed that it was “weaving from side to side.” Dunn testified that he then activated his emergency

lights, and the car pulled over into a parking lot. He stated that at the

time he pulled the v ehicle over, it was not raining, but it began to “mist or sprinkle” during the stop.

Dunn reported that he was not familiar with the driver of the c ar, but he recognized t h e passenger in the vehicle, whom he identified as “Mr. Denton.” He testified that he asked the driver-3-

of the car, whom he identified as the Defendant, for her dr iver’s license, and she retrieved it from the trunk of the vehicle. He noted an o dor of alcohol about the driver and stated that she seemed “unsteady.”Dunn stated that he asked the Defendant whether she had had any

thing to drink, and she initially responded that she had not. Dunn testified that the Defendant attributed the odor of alcohol to Denton and told him that she was driving due to Denton’s inability to drive. Dunn stated that in response to questioning, the Defendant first told him that she had been on the roadonly about ten minutes, but later

told him that she had c ome from C otton-Ey ed Joe’s in

Knoxville, s topping in Rockwood to drop off passengers. Dunn reported that the Defendant also eventually admitted that she had drunk two “Long Island Teas,” which D unn defined as “a mixture of lemon juice and five different liquors” in “half ounce quantities of eac h.”

Dunn testified that after following the Defendant on the highway , he felt that she should not have been dri ving an d that af ter talking with h

er, he de termined that “ she’ d obviously been drinking.” He stated that he therefore asked the D efendant to perform field sobriet y t ests. Dunn reported that he was trained to observe the test- taker’ s attentio n span dur ing the instructio nal phase of the tests because “intoxicated persons have trouble concentr ating on two things at the same time.” He stated that he also was trained to notice whether the person was unsteady during the instructional phase and whet her the p erson co

uldreadily under stand the instructions. Dunn testified that he had to repeat the majority of his instructions to the Def endant, a nd he stat ed that she was att

entive on ly “part of the time” during the instructional phase of the tests. I n addition, Dunn stated that the Defendant began some of the tests bef ore he was able to finish explaining the test instructions.

Dunn reported that

he fi rst asked the Defendant to perform the horizontal ga ze nystagmus test, and then m

oved on to

a test whi ch requi

red her to stand wi

th her feetapproximately shoulderwidth apart, e xtend her a

rms, tilt her head back, and touch her nose with e ach of he

r index fing ers. Dunn stated that the

Defend ant was a

ble to touc

h her nose

withboth fing ers, but reported that she
was unsteady during

the test. Dunn

testi fied that h e next asked the Defendant to perform the “walkand-turn, which consists of walking heel to toe nine steps,” counting e ach step aloud, and then walking nine steps back to return to starting position. He stated that he had to repeat his instructions to the Defendant for this test, and he reported that on her first attempt, the Defendant “basica lly j ust walked” and usedher arms for balance. Finally, Dunn testified that he had the Defendant perform the o ne-legged stand . For this test, Dunn instructed the Defendant to stand with her arms to her sides, raise one leg in

front of her, and count from 1,001 to 1,025 or until Dunn asked her to stop. Dunn stated that the Defendant told him that she simply could not perform this test. Dunn testified that at some point during the field sobriety tests, the Defendant told him that she had some back and hip problems

. She also told him that she was taking “muscle relaxers” and showed him two different prescription medications, Soma and Lortab, also know n as dihy drocode ine, a Sch edule II I narcotic.

Dunn stated that

following

the field sobriety tests, he placed the Defendant under a rrest for DUI and read her her rights. He offered her a blood alcohol test and a bre athalyzer test both at the
scene and late

r upon he

r arriva l at jail. D unn testif

ied that to

the best of his recollection, the Defendant

told him at t

he scene that she b oth would a

nd would nottake the test. He stated that she read the implied consent law and ultimately signed a form refusing to take the test.-4-

Dunn reported that after arresting the Defendant, he turned hi s attention to Denton, the passenger in the vehicle that the Defendant had been driving. He stated that he explained to Denton what was happening and told him that he would also be arrested. Dunn testified that during his stop of the Defe ndant, oth er offic ers had a

rrived a t the sce ne in res ponse to

the call from the ambulance. He recalled tha t Denton exited the vehicle several times during the field sobriety tests, and Dunn askedother officers at the scene to watch D enton so that Du nn could devo te his attention to the Defend ant. Dunn stated that he later arrested Denton and plac ed him in the back of the police vehicle with the Defendant. He recalled that a c hec k of the lice nse tag

on the Cro wn Victor

ia revealed that the car belonged to Denton, and Dent on asked Dunn to park the vehicle for him. Dunn testified that

he remov ed Dento n’s cell phone from the vehicle, and another office r moved the car into a parking space and locked it.

Dunn reporte d that he t

hen tran sported b oth the De fendant and Dent on to jail. At the jai l, he read a form to theDefendant which explained the implied consent law and the consequences of refusing a blood alcohol test. He stated that he read the form to her at 3:14 a.m., and the Defendant signed the form and checked a box on the form indicating her refusal to submit to a blood alcohol test. Dunn read the form to the jury , and the State entered into evidence a copy of the form.

Dunn testified that a videotape was made of the Defe ndant’s arrest. He ex p lained th at a video camera

was mounted inside hi s police v ehicle and that he was equipped with a “body mic.” Th e v id eo ta pe wa s s ho wn to th e j ur y.
On cross-examination, Dunn testifie d that dur ing the f ield sobr iety tests, the Defend ant told him that she w as d isabled. He s tated that she also told him that she needed to urinate, and he recalled that at times, the Defendant was moving about as if she needed to use the restroom. I n addition, Dunn admitted that under some circumstances, the movement of other individuals during field sobriety tests, such as Denton getting in and out of his vehicle, could have an adverse ef fect on the person taking the tests.

Jeff Hill testified that he had beena patrolman for the Day ton Police Department for eleven ye ars. He st at ed th at on Ju ly 1 0, 1999, w hile he was on patrol, he heard on his police radio that Trooper Dunn hadstopped a vehicle on Highway 27, and he drove to the scene to “back [Dunn] up.” Hill recalled that when he arrived at the sc ene, Dunn was talking to the Defendant, whom Hill knew. He stated that immediately afte r his arrival, D enton, whom Hi ll also knew, got out of his car and walkedtowards Hill while Trooper Dunn repeatedly told him to ge t back into his vehicle. He testified that Dent

on eventu ally

complied. Hill stated that he recalled hearing the De fendant say

that she had drunk two Long I sland Te as and that she had taken a muscle relaxer and a pain pill. He reported that he hadmade se veral arrests for DUI and stated that the Defendant appeare d to be “intoxicated or under

the influe

nce of so me ty

pe of dru g.” Hill testifie d that as D unn prep ared to administer

field sobriety tests, Denton g ot out of his car again, walked to them, was told to re tur n to his car, and did. Hill stated that he went to

Denton’ s car to

ensure that Denton did not get out of car during the tests, and he stated that there fore did not actually

witness the tests.-5-

On cross -examinat

ion, Hill te stified th at he hea rd the De fendant complain of back a nd hip injuries. He stated that he thought that the Defend ant’s speech wasslurred on the nig

ht of her arrest. He also testified that she appeared to be cooper ative at the scene.
Following Hill’s tes timony , Troope r Dunn wa s r e called to the stand. He testified that altho ugh he follow ed the ve hicle dr iven by the Defe ndant for some time, he did

notactivate his blue emergency

lights until immed ia tely before the Defendant pulled over. He stated that the video
camera in his police vehicle was set up to begin recording when his eme rgency lights were activated. Dunn stated that he did not see a safe spot to pull the Defendant over be fore the spot

he chose for the stop. Finally, Dunn testified that he turned off his camera about three times during the stop while he was conversing with Jeff Hill. He stated that althou gh a general order from the Te nnessee Department

of Safet y directed him to leave on his recording equipment once activated, he had not received any ty pe of disciplinary a

ction or reprimand from his supervisors based on his turning off his equipment, and no fault had been found rega rding his actions.

Dete ctive C hris Hall testified that he had been employed by the Rhea County Sheriff’s Department

for ei ght years. He sta ted th at on J uly 10, 1 999, h e was wo rking a s a patrol sergeant shiftsupervisor. Hall recalled that he responded to a call b

roadca st on his ra

dio reg arding

a traff ic stop. He state d that the or iginal call w as mad e by a medi c unit that w as fol lowi ng a vehicle which
was suspected to be driven by a drunk driver, and he later heard that Trooper Dunn ha d stopped the vehicle. Hall testified that he responded to the call as back- up.
Hall stated that when he arrived at the scene, he saw Trooper Dunn inter viewing the Defendant

outside of the vehicle that she had been driving, and he reported that it appeared that he had already

given her field sobriety

tests. Hall testified that he wal ked to them and stood nearby while Dunn was talking

to the Defendant. He stated that the Defendant appeared to be intoxicated. He testifie d that af

ter they finished speaking , Dunn pla

ced the D efenda

nt in his vehicle and offered her a blood test.

Valarie Bell Lavende

r, a cor rection s office

r with the sheriff ’s depar tment, testified that she
was working

as the boo

king off icer at t h e jai l on the night that the Defendant and Denton were arrested. She stated that the Defendant was “very intoxicated” and recalled that the Defendant had blood-shoteyes and sme

lled of alcohol. Lavender testified that the Defendant told her that Denton had asked he

r to drive him home because “

he was no t in any

condition

to” drive . Accor

ding to Lavender, the Defendant also said that she should not have been driving because she had drunk too much. On cross-examination, Lavender te stified that Denton and the Defendant were uncooperative at the jail, and she stated that the Defendant refuse d a breathaly zer test. Deputy Matt Rose

of the Rhea County Sheriff’s De partment testified that he was working in the jail on July 10, 1999. He stated that he booked Denton while Lave nder booked the Defendant when they wer

e brought in following their arrests. He r ecalled that the Defendant appear ed to be intoxicated. He testified, “She was unsteady on he r feet and she looked like she was in disarray . Her-6-

eyes were real glassy a

nd watery.”

He also testified that Denton “got real loud” and be gan making accusations about officers and problems at the jail.

The Defendant testified that she was fifty -seven ye ars old and reported that she was disabled. She stated that she was not employe d, but rec eived disability benefits from the g overnment. The Defendant

stated that she had been diagnosed with spondylolitis and spondy lolitos, which she definedas “a separation of the spine in the lower bac k.” She testifiedthat these conditions caused her “excruciating pain” and reported that she was involved in an automobile accident in the 1970s that contributed to these conditions. She testified that at the time of her arrest, she was being treated by a doct or in C hatta nooga and a doctor at “Johnson’s Mental Health.” She also stated that at the time of her a

rrest, sh e was tak ing Hy drocodo ne ever

y e ight hour s, Lort

ab ever y tw elve hour s, and a generic brand of Soma eve ry twelve hour s. She testified that she was stopped by T rooper Dunn between2:00 and 2:30 a.m., and she stated that she had last taken her medicati on at appr

oximately 4:00 p.m. the prior afternoon.

The Defendant tes tified tha t on the da

y pr ior to her arrest, she had d

riven to Ro ckwood to meet with her daughter-in-law. She explained that her daughter-in-law’s mother ha d p as se d a wa y, and her daughter-in-law wished to sort throug h some of her mother’s personal belonging s. The Defendant

testified that she left her home in Day ton and rode with

Roy Denton, w

ho was dr iving his car, to Rockwood in Roane County at approximately 4:30 p.m., shortly after taking her medication. She denied drinking any

alcohol before leaving her home.

The Defend ant repo

rted tha t after a rriving in Rockwood , she and

Denton we

nt to the home of her daughter-in-law’s brother . She admitted that while there, she dr ank a “ Long I sland Tea.” However, she desc

ribed the drink as a wine cooler and maintained, “To me that’s L ong Island Tea.” She denied knowing of any other drink by the same

name. The Defendant

stated that she sipped the wine cooler slowly at a

pproximately 6:00 or 6:30 p.m. Shereported that they stayed in Rockwood for approximately an hour, and then she drove to Kingston. She stated that a total of five peo

ple went with her: her son, her daughter-in-law , her daughter-in-law’s brother , his girlfriend a nd his sister-in-law at the time. She stated that four of these people rode with her in her car. The Defendant testified that she w ent to King sto n to lend “moral support” to her daughter-in-la w as she sorted through her mother’s personal effects. She recalled that they left King ston around 10:00 or 10:30 p.m. The Defendant denied drinking any alcohol while in Kingston.

The Defendant stated that af ter leaving Kingston , she returned to Rockwood, where she drank
a second twelve-ounce wine cooler at a pproximately 10:00 or 10:30p.m. She maintained that she
was not intoxicated after drinking the two winecoolers, and she insisted that the pills that she took at 4:00 p.m. did not have an effect on her. The Defendant also denied g oing to Cotton-Eyed Joe’s
on the night

of her arrest and explained that she was “sca red and got [her] tong

ue all tie d in knots” while speaking to Trooper

Dunn about who had been to theclub. She stated that although she and the group o f people

with her e arlier t

hat even ing had “discuss ed it ,” only her da ughter-in-law’s brother and his girlfriend actually went to the club. She stated that they drove to Cotton-Ey

ed Joe’s in a separ ate car and

later re turned the car to

the home where f amil y members were so rting t hrough-7-

the mother’s personal effects. The Def endant reported that

sh e drove t

he pair f rom King ston to Rockwood after they

returned from the club.

The Defendant reported that after r eturning to Rockwood, she and Denton left for D ayt on between12:30 p.m. and 1:00 a.m. She recalled that it had been raining all evening around Kingston and Rockwood, and she maintained that it was raining when they left Rockwood. The Defendant testified that she drove home because she thought D enton had “had too much to drink,” and she “didn’t think h e should” drive. She also stated that Denton “gets very argumentative” and makes her nervous when he drinks.

The Defendant testified that the roads were we t as she drove home to Dayton and stated tha t there were puddles of water and portions of tires on th e highw ay. She st ated, “I swerved to do dge them, because I wa s not

. . . u se [d ] t o t ha t c ar an d i t h ad be en wr ec ke d p re vi ou sl y, and had a lot of front end dama

ge to it . . . .” In addition, she maintained that she had difficulty seeing because of the rain, be cause

it was night, and because she wore c ontacts. The Defendant recalled see ing bright lights behind her, but stated that she could not distinguish whether the vehicle following her was “an ambulance or a

pickup truck.” She reported that she also recalled seeing Trooper Dunn’s emergenc y lights, and she stated that when she saw them, she immediately pulled off the road.

The Defendant testified that when Dunn approached her ve hicle, she partially opened her window, he asked her about her driver’s license , and he th en spoke to Denton , who had j ust

awoken in the pas senge

r seat. T he Defe ndant re ported th at she told

Dunn that her license was in the trunk and emerged from

her vehicle to retrieve

it. She explained that she felt stiff because she had been sitting for a lon g perio d of time a nd beca use she had been “tensed up” due to the rain. She testified that she thus felt “weak legge d” when she got out of th e car. When asked whether she stag gered when she walked to the trunk of her vehicle, she state d, “I wouldn’t know if I wobbled or not.”

With regard to the field sobriety tests, the De fendant maintained that she was “in pain” during the tests. She testified that she told Dunn each time he asked her to perfor m a test that

“there was
no humanly way

possible [she] could do it,” but she co uldnot recall whether she actually told Dunn that she was in pain during the tests. She stated that she was able to understand Trooper Dunn and had no trouble

touching her nose with her fingers. She also reported that she “ joked” with Dunn by making “a few remarks to him about his southern accent.” However, the Defe ndant maintained that she was “scared to death” and distracted by Denton’s behavior and “attitude” during the te sts. She testified that Denton’s beha vior “ bothe red [h er] a lot” and stated, “I didn’t know what to expect. I couldn’t control it.” She also testified that she was embarrassed and nervous because of the other officers watching her attempt to perform the tests. Finally , she clai med that her contacts were “both ering” her and that she needed to urinate. She reporte d that she told Dunn numerous times that she needed to use the restroom, and she explained that she was rocking on the balls of her feet at the scene because of

this.

The Defend ant state d that she remembe red L avende

r at the ja il. She testified that while she
was at the jail, she tried to “[g]et [Denton] to settle down and be quiet.” She stated that he was loud-8-

and argumentative, and she wanted him to coop erate

with the officers. The Defendant explained that her effortsto calm Denton may ha ve distracted her from the booking officers. She testified that she nonetheless understood what was happening and maintaine d that she tried to cooperate.

On cross-examination, the Defendant admitted that she may have

crossed the center

line on the highway

when she was “dodging some of the larger water spots.” Howeve r, she maintained that sh e did not v eer off the road. She also testified that she had bee n taking her pain medications for yearsand admitted that she had noticed that at least one of h er pres criptions prohibited her from driving aft er t aki ng h er p il ls . In addition, she admitted that she u nderstoo d that she

was not to m

ix her medica tions with alcoh ol, but she stated, “That’s why . . . I just didn’t do it. I wa ited several hours.” The Defendant testified that she had a cane to help her walk, which she c laimed was in the back seat of the car she was driving a t the time of her

arrest. She reported that she informed Dunn that she was “handicapped and . . . had a disability.” She

maintained that Dunn knew her cane was in the vehicle because he looked inside the car , butshe state d that she did not ac tually

tell him that she had a cane. The Defenda nt admitted that she told Dunn that she had been driving for only ten minutes at the time

of the sto

p and that she had n ot had any

thin g to drink. She also testified that when Dunn asked her to pe rform the walk-and-turn te st, he told her to take nine steps, and she said “four.” She explained, “I’d heard lots of the c ounty officer s . . . talk abou t giving field sobriety

tests and them laughing about the y w ould only

demonstr

ate four , becau se afte

r that the y w ould stagger themselve s, so that’s what I was ref erring to.” She ma

intained that she la

ughed with Dunn a

bout this and abou t his pronu

nciation of a wor d, despite the gra vity of the circumstances, but she explained that she was “just scared and nervous.”
Following the Defendant’s testimony , Trooper Dunn was recalled to the stand. He testified that he searched Denton’s vehicle at the time of the stop, but did not find a cane or a walker in the
car. He also stated that he had created a w ritt en inventory of the

items in the vehicle. Following Dunn’s testimony , Chris Hall was recalled to the stand. He stated that it was not raining when he arrived at the scene on thenight of the Defendant’s arre st, but he stated that it may have “sprinkled.” Eugene Edward L

ewis was next recalled to the stand. He testified that it was not raining when he
saw the Defendant’s vehicle weaving across the highway . He a lso maintai ned that he did not see stand ing wat er in t he road and th at wat er was n ot a fac tor wi th regar d to t he Defe ndant ’s dri ving.

I. SUF FICI ENCY OF T

HE EVI DENCE

The Defendant first argues that the e vidence presented at her trial was insuffic ient to support her conviction. Sp ecifically, she contends that the State failed to establish bey ond a reasonable doubt that she was under the influence of an intoxicant to such a degr ee that her ability to opera

te a motor vehicle was impai

red. The statute g overning

the offe nse of wh ich the De

fendant wa s convicted provides , in pertin

ent part , as follo ws: It is unlawf

ul for an y pe rson to dr

ive or to b e inph ysical control of a ny au tomobile

or other motor driven vehicle on any of the public roads and hi ghway s of th e s ta te , o r o n a ny s tr ee ts or al le ys , or while on the premises of any shopping-9-

center, trailer park or any

apartment house complex, or any other pr

emises which is gener ally freque nted by the public

at larg e, while:

. . . [u]nder th

e influe nce of a ny intoxicant, marijuan a, narc otic drug, or drug producing stimulating effects on the centr al nervous system . . . . Tenn. Code Ann. § 55-10-401(a)(1).

When an accused challenges the sufficiency

of the evidence, an appellate court ’s standard of review is whether, after c onsideri ng the e vidence in the lig ht most fav orable t

o the prosecution, any rational trie

r of fact could have fou nd the ess ential elements of the crime bey ond a rea sonable doubt. Tenn. R. A

pp. P. 13(e); Jackson v. Virgini a , 443 U.S. 3 07, 324 (1 979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). Thi s rule applies to findings of guilt based upon direct evidenc e, circumstantial evidence, or a combination of both direct a nd circumstantial evidence. State v. Penderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determin

ing the s ufficie

ncy of the evidence, this Court s hould not re -weigh or re-e

valuate the evidence. State v. Matthews , 805 S.W.2d 776, 779 ( Tenn. Crim. App. 199 0). Nor ma y th is Courtsubstitute

its infer ences f or those drawn by the trier of f

act from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 1 05 (Tenn . 1999); Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956) . Questions concerning the cre dibility of the wit

nesses, the weight and value of the evidence, as well a s all factual is su es ra is ed by t he ev id en ce ar e r es ol ve d b y the t rier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well as all reasonable infe rences which may

be drawnfrom the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt ag ainst a

defendant
removes the pres umption of innocenc e and ra

ises a pr esumption

of guilt , the conv

icte d criminal defendant bears the burden of showing that the evidence wa s legally insuff icient to sustain aguilty verdict. Id.
Having thoroughly r

eviewed the record, we conc lude that sufficient evidence was presented to support the Defe

ndant’s c onviction . The driv er of an amb ul ance and the arr

esting o fficer

both testified that they

observed the car dri ven by the Defend ant we aving a cross the hi ghway. Alt hough the Defendant attributed

this to standing wa

ter and d ebris on t he high way , all others who testified
conce rning the weather and the condition of the road repor ted that it was not raining wh en th e Defendant

was observed weaving acr oss the road, and no one except the Defendant recalled seeing any obstacles in the r

oad which would have forced the Defe ndant to weave.

More important

ly, the arr

esting o fficer , two othe

r office rs p resent at

the scene of the Defendant’s arrest, and two booking of ficers at the jail testified that the Defendant appeared to be intoxicated or atleast under the influence of some ty

pe of drug. Although the Defe ndant reported bothat trial andat the scene of her arrest that she was disabled, the arresting office r’s conclusion that she was intoxicated on the night of her arrest was not based mer ely on the field sobriety

tests which she failed, but also on other factors, such as her beha vior, the odor of alcohol emanating fr om the Defendant’s person, a

nd admissio ns by

the Defe ndant at t he scene . Accor

ding to th e arre st ing officer,-10-

the Defendant admitted to having taken two prescr iption medications, one of which was classified
as a Schedule II

I narcotic, and

to having drunk two

alcoholi c bever

ages. At trial, t

he Defe ndant did notdeny that she had dr unk two alcoholic bever ages, although she claimed that the drinks she consumed did not contain hard liquor, and she also stated that she took two prescription medications approxima

tely three hours before driving, despite directions on her prescription labels which warned her not to operate a v ehicle a fter ta king the medicati ons. This isclearly sufficie nt evidence to support the jury’s finding

that the Defendant operated a motor vehicle w hile under the influence. This issue

is without me

rit.

II . VOIR DI RE

The Defendant next argues that the trial court er redby failing to r

emove for cause one of the jurors who sat for her case. However , the Defendant has failed to include a transcript of voir dire in the record o n appeal. It is the duty of the accused to provide a record w hich conveys a

fair,
accura te and compl ete account of what transpired with rega rd to the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor , 992 S.W.2d 941, 944 (Tenn. 1999). B ecause a transcript of voir dire is not included in the record, the Defe ndant has waived

this issue o n appea

l. See Tenn. R. Crim. App. 10(b); Thompson v . State , 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). In the absence

of an adequate record, we must conc lusively presume that the dete rminations made by the trial court we

re correct. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

II I. DEFENDANT ’S MOTION TO DI SMISS THE INDI CTMENTS

The Defendant contends that the trial court erred when it denied her motion to dismiss the indictmen ts in this case. The Defendant argue s that the State’s pr osecu tion of her pursuant to the indictmen ts resulte d in violationsof her r ight ag ainst

double jeopardy, he

r due process rights, and the excessive

bail provisions of th

e Unite d States an d Tennes see Consti tutions. Th

ese arg uments
were included in her motion to dismiss the indictments, and a written order is included in the technical record in which the trial court denied the motion. Other than the motion and the order, no evidence is included in the record concer ning this issue.

It is the duty

of the appella

nt to prep are a r

ecord w hich conv ey s a fair, accura te, and c omplete account of what tr

anscrib ed in

the trial court with respect to the issues which form the basis of the appeal. Tenn. R. A

pp. P. 24(b ); see Taylor , 992 S.W.2d at 944

. In the absence of an adequate record
on appeal, we must pr

esume that the trial court’s rulings were supported by sufficient evidence. Oody , 823 S.W.2d at 559. There is no evidence in the record demonstrating tha t the trial court’ s ruling with regard to this issue was in any way incorr

ect, and without further evidence in the record concerning this issue, we are precluded from properly reviewing it.

IV. TESTI

MONY BY TROOPER DUNN-11-

The Defendant next argues that the trial court erred by

allowing Trooper Dunn, the arresting officer in this case, to testify concer ning the contents of an alcoholic beverag e, specifically a Long Island Tea. During

direct examination of Dunn, the following colloquy occurred: [STAT E]:

. . . . Did [the Defendant] ever describe to y ou what kind of alcohol she had ingested, please? [DUNN]: Ye s, sir, she

stated she had dra

nk two L ong I sland Tea s. [STATE]: Okay. Now, is that an alcoholic bever age? [DUNN]: Ye s, sir, it is

. [STATE]: And she stated she had two of those? [DUNN]: Yes, sir. [STAT E]: Can you tell the ladies and gentlemen what’s in a Long I sland Tea, please, sir? [DUNN]: Yes, sir. [DEFENSE

COUNSEL ]: Ju dge, I object if he’s reading some document. . . . He’s pu ll ed ou t a do cu me nt to re ad fr om . T ha t w ou ld be he ar sa y. THE COURT: I sustain the objection. [STAT E]: From y

our memor

y c ould you tell us what’sin a L ong I sland Tea , please sir? [DUNN]: Sure . There ’s – [DEFENSE

COUNSEL

]: I obj ect. THE COURT: Overruled. [STATE]: Go ahead. [DUNN ]: . . . [I]t’s a mixture of lemon juice and five different liquors. It’s, I believe, half ounce quantities of

each. There’d be roughly two and a half ounces of the liquor. [STAT E]: Okay , what kind of liquor are we talking about? Liqueurs or hard liquor? [DUNN ]: Hard liquor, as I would ca ll it, and I can’t quot

e you the ex act brands without loo

king at t he docume

nt. In a bench conference he

ld out of the hearing of the jury after this exchange, the

Stateinformed the court: “This off

icer is familiar with the drink L ong I sland Tea , but he g ot the ing redient s specif

ically outof a bartender’s guide.” T he co urt respon ded that it agreed with defense counse l that information from the bartender’s guide would constitute hearsay , butthat it had allowed t he witnes s to testify from his own knowledg e.

We must first consider whether testi mony conc ernin g the co ntent s of an alcoh olic b everage is the subject

of expert testimony or lay opinion. The admission of expert testimony is gover ned by Tennessee Rule of Evidence 702 , which states, “If scientific, tec hnical, or other specialized knowl edge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or educ ation may testify in the form

of an opinion or otherwise.” Evidence constitutes “scientific, technical or other specialized knowledge,” Tenn. R. Evid. 702, if “it concerns a matter that ‘the averag e juror w ould notknow, as a matter of course . . . .’” State v. Murphy , 953 S.W.2d 200, 203 (Tenn. 1997) (quoting Statev. Bolin , 922 S.W.2d 8 70, 874 (T enn. 1996 )). Exper t t estim ony is “predica

ted upon specialized knowledge that is unfamiliar to most lay -persons.” State v. Ga lgal o B. Halake , No.-12-

M2000-0 0146-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 921, at *21 (Tenn. Crim. App

. , Nashville, Nov. 29, 2001). Because testimony concerning the contents of an alcoholic bevera

ge is not“predic ated upon

specialized knowledge tha t is unfami liar to most

lay-per sons,” id. , we conclude that the testimony in this case does not qualify as expert testimony.

Both the State a

nd the Defe ndan t ana ly ze this issue under Tennessee Rule of Evidence 701, which all ows for o

pinion tes timony

by l ay witnesse s. Rule 701 provides , in pertin ent part : If a witness is not testifying as a n expert, the witness’s testimony in the form of opinions or inferences is limited to the opinions or inferences which are (1) rationally ba sed on the perception of the witness and (2) helpful to a clear u nderstan ding of the witness’s testimony or the determination of a fact in issue. Tenn. R. Evid. 701(a). “Rule 701(a) provides that opinion te stimony

by l ay witnesse s is limited t

o opinions notrequiring special knowledge; situations wher e the witne ss cannot

readily communic ate without testifying in terms of opinions; and situations where the opinion will not mislead the trier of fact to the prejudice o f th e objecting party .” State v. Dutton , 896 S.W.2d 114, 118 n.2 (Tenn. 1995). Although we note that Trooper Dunn was a lay witness, we ar e u nconvinc ed that hi s testimonyconcerning the contents of a L ong Island Tea

constitutes opinion testimony. The Advisory Commission Comments to Rule 701 pr

ovide: “I n situation s were a

witness ‘ cannot r

eadily and with equal ac cu ra cy a nd ad eq ua cy’ testify without an opinion, the witness may state opinions requiring
no ex pe rt is e. Co ns eq ue nt ly, a lay wit ness may testify

that a person was ‘drunk’ or that a car was traveling ‘fas t.’” Be cause T rooper D unn’s com

ments were factua

l in nature , we conc lude that his testimony did not qua

lify as opinion

testimony

by a lay witness.

We instead find TennesseeRule of Evidence 602 to be more applicable to the issue at hand. Rule 602 provides, in pertinent part, as follows: “A witness may not testify

to a matte

r unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidenc e to prove per sonal knowledge may , but need not, consist of the witness’s own testimony.” In this case, no foundation was lai d fo r Trooper Dunn’s testimony , and we thus conclude that insuf

ficie nt evidence was presented to support a finding that Trooper Dunn had personal knowledge about the contents of a Long

Island Tea. I

n fact, Trooper

Dunn conceded that he was utilizing a “document,” a pparent ly a bartend er’s guide, whe

n he testif ied as to th

e conten ts of the dri nk . Perhaps more importantly, Tr ooper Dunn did not have personal knowledge of the contentsof the alcoholic beverages c onsumed by the Def end ant on t he nigh

t prior to h

er arr est. Becau se t here was no indication that Dunn had personal knowledg e to support his testimony, we conclude that Dunn

should not h ave bee

n allowed to testify concerning the contents of the bever age.
However, the error does not “affir matively appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a). Furthermore, in light of the substantial evidence presented at trial supporting the Def

endant’s conviction, it does not appear that the error “mor e probably than not” affected the judgment. Tenn. R . App. P. 36(b). We therefore conclude that the trial court’s
error c oncerning Dunn ’s testimo ny w as harmle ss.-13- V. VI DEOTAPE

Fi na ll y, the Defendant contends that the State ’s failur

e to provi de the de

fense w ith a “leg

ible
co py” of a videotape of the Defen dant made at the jail on the night of her arrest resulted in a violation of the Defendant’s due process rig hts and her right to a fair trial. She a rgues that the videotape constitutes exculpatory evidence and “is tantamount

to lost or destroyed evidenc e.” She admits that a

copy of the tape

was provided

to the def ense pri or to tria

l, but state s that the t

ape cou ld notbe viewed because it “was made on a machine which records long periods of time, a nd the tape is not legible when used with a regular V CR or VCR’s available to the public.”

The Defendant has failed

to include a copy

of the tape in the record on appeal. As we have previous ly

stated, it is the duty of the acc used to provide a record which convey s a fair, accurate and complet e account of what transpired with rega rd to the issues which form the basis of the a ppeal

. Tenn. R. App. P. 24 (b); see Taylor , 992 S.W.2d at 944. “Absent the necessa ry releva nt materi al in the record an

appella te court cannot consider the merits of an issue.” State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). The Defendant’s failure to include a c opy of the videotape in the record renders us unable to properly review this issue. We therefore conclude that this issue is waived.
Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE