### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs Jul y 16, 2003
STATE OF TENNESSEE v. BRANDY D. FORREST Direct Appeal from the Criminal Court for Davidson County No. 2002-T-113 Carol L. Soloman, Judge

No. M2002-02434-CCA-R3-CD - F iled August 11, 2003

A Davidson County jury

convicted the defendant, Brandy D. Forrest, of driving under the influence, first offense. The trial court

imposed a sentence

of eleve n months an d twenty -nine da ys w ith twenty days incar

ceration followed by

probation. On appeal, the defendant asserts the trial c ourt erred by allowing ir re le va nt an d p re ju di ci al te st im on y an d a vi de ot ap e t o b e p re se nt ed to th e j ur y. We affirm the judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and A LAN E. G LENN , JJ., joined.
Ross E. Alderman, Public Defender; and Patrick G . Frog ge (at t rial and on appeal) and Jonathan Farmer (at tria l), Assista nt Public De

fender s, for the

appella nt, Bra ndy D. Forr est.
Paul G. Summers, Attorney General and Reporter; Brade n H. Boucek , Assistan

t Attorne y General ; Victor S. Johnson, III , District Attor ney Gene ra l; and Ryan Brown, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
Officer Shawn Taylor of the

Nashville Metropolitan Police Departmen t testified that on September

5, 2001, at approximately 2:00 a.m., he observed the defendant drive her vehicle around a curve a nd strike a stone w all next to the roadw ay . Office r Tay lor te stified he ap proached the vehicle and, although the defendant appeare d to be upset, she stated she was not injured. The officer testified the defendant’s speech was slurred; she smelle d strong ly o f alcoho l; and she was unsteady on her fee t. The officer then observed in the car one broken bottle of beer; several unopened bottles of beer; and one opened bottle of beer. When he a s ked her if she had been drinking alcohol, the defenda nt re plied that she had “not had hardly nothing.” The defendant informed the off icer that she w as unable

to perfo rm field s obriety

tests due to her inju

ries. The office r also sta ted th e defendant made various racial slurs and threaten ed t o sue him. Based upon the defendant’s demeanor, Officer Tay

lor opined she was in

toxicated. The vide otape of the incid ent also r eveals the defe ndant refused to t

ake a br eathaly zer test.-2-

The defenda

nt testifie d she has a

speech impediment, which makes her words appear slurred. She stated she also has a pierced tongue a n d was wea ring jewelry

in her tongue when she was arreste d. She den

ied drink ing any alcohol t hat nigh t.
The defendant

testified she was worried about wrecking he r boyfriend’ s vehicle because her boyfriend had been violent with her in the past. She stated she became ang ry when Officer Tay

lor refused to call her boyf

riend, and she “ove rreac ted.” The defendant explained that she has a bad temper and lost control of it. She further testified she was unab le to per form the f ield sobr iety tests due to leg injuries. The jury convic ted the defendant of driving under the influenc e, first offense.
I. EVIDENTI

ARY ISSUES
The defendant contends the trial court erred in a dmitting irrelevant

and unfa irly prejudicial evidence during the trial. We discern no basis for r elief.
We first note that the defendant filed a statement of the evidenc e rather than a transcript of the proceedings. See Tenn. R. App . P. 24(c). The state contends the information set forth in the statement of the evidence is insufficient for purposes of appe llate review. However, upon reviewing the statement, we conclude it contains sufficient informat ion as topermit us t

o adequa tely address the issue s presen

ted on app eal.
Evidence is releva

nt i f it has “ any tendenc y to make the existence of a ny fact that is of consequenceto the determ ination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Once the court c oncludes the evidence is relevant, the court should exclude the evidence if its probative value is substantially outweighed by

its prejudicial effec t. Tenn. R. E

vid. 403; State v. James , 81 S.W.3d 751, 757 (Tenn. 200 2). A trial court’s decision as to the relevance of evidence unde r R ule 401 wi ll b e reversed only upon a showing of abuse of discretion. State v. Powers , 101 S.W.3d 383, 395 (Tenn. 2003). A. Testimony Regarding the Defendant’s Occupation
Officer Taylor testified the

defendant

told him that she was an exotic dancer and worked at an adult club called “Showtime.” The officer stated he had previously conduc ted an investigation of the club a

nd notice d that “the exotic dancer s so metimes drank alcohol.” Defense counsel objected to the testimony, and the tria l court overruled the objection.
The defendant’s occupation was relevant because the defenda nt informed the officer that she had just left her place of

employ ment when

the acc ident occ

urred. We

are una ble to conclude the evidence rega rding the defendant’s occupation was so unfairly prejudicial as to bar its admission. See Tenn. R. Evid. 403. Therefore, this testimony was properly

admitted. However, Office

r Tay lor’s tes timo n y that exotic dancers “ sometimes” drink alcohol was inadmissible. This testim ony was irre levant to the issue of whether the de

fendant ha d consumed alcohol on this par

ticular o ccasi on. Theref or e, th e t ri al co ur t e rr ed in ad mi tt in g t hi s t es ti mo ny.-3-

Regar dless, such error was harmless in light of the strong e vidence of guilt. See Tenn. R. App. P. 36(b). B. Testimony Regarding the Defendant’s Use of Racial Slurs
Officer Taylor testifie d that dur

ing his e ncounter with the de

fendant , she became hostile and used racial slurs. Defense counsel objected to the testimony , and t he trial court overruled the objection.
The testimony was releva nt to establish the defen dant’s belligerent demeanor as evide nce of intoxication. See State v. Richard A. Green , No. 03C01-9812-CC-00422, 1999 Tenn. Crim. App. LEXIS 806, at *11 (Tenn. Crim. App. Aug. 9, 1999, at Knoxville) (consideri ng the defen dant’s belligerent

b ehavior as p roof of intoxication). Officer Tay lor testified that he concluded the defendant was intoxic ated bas ed upon he r hostile a

nd uncoop erative

demeano r. Moreo ver, this testimonywas not so unfairly pre judicial as to bar its admission. See Tenn. R. Evid. 403. Therefore, the trial court did not abuse its discretion by a dmitting this evidence.
C. Videot

ape of the A rrest
Officer Tay lor’s ve hicle was equipped with a video camera that rec orded his encounte r with the de fendant. Over defense counsel’s objec tion, the prosecution introduced the videotape of the incident and play ed it for the ju

ry. For approximately one hour during the videotaped encounter, the defendant

cried hyster

ically, continuously

requested that the officer call her boy friend, refused to fo llow instructions during the administration of the field sobriety tests, refused to consent to a breathalyzer

test, yelled, repe atedly curse d at the officer, and made numerous racial remarks. The defendant contends the trial court erred in refusing to re dact statements regarding the defendant’s profession and various racial slurs from the videotape. We disag ree. The videotape was relevant to illustrate the extent to which the defendant was impaired. The defendant maintained she had not consumed alcohol that evening and was not intoxicated at the time of the in ciden t. How ever, t he defe ndant ’s hyster ical r antin gs as illustrated on the video tape ar guably show otherwise. See State v. Carl Mar tin , No. W2002-00066-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 12, at **23-24 (Tenn. Crim. App. Jan. 2, 2003, at Jackson) (holding the defend ant’s videotaped“profane and wicked ranting s” were relevant and admissible in showing the de fendant’s impairment). The videotape is especially probative as it was the only ph ysi cal e vidence of the defendant’s intoxication. The defendant refused to perform field sobriety tests and refused to take a breathalyzer

test. The

probativ e value o f the vide otape wa s not substa ntially outweig hed by its danger of unfair prejudice. See Tenn. R. Evid. 403. Therefore, we conclude the tria l court did not abuse its discretion in permitting the jury to view the videotape.
II. CUMULATIVE EFFECT
The defendant contends the cumulative effec t of the errors requires reversa l. However, we have noted only one err

or and have conclude d th e error was har mless. The

refore , this issue

is without me

rit.-4-

Accord ingly , we aff

irm the jud

gment of the trial court.

JOE G. RILEY, JUDGE