1 In lieu of a trans cript of

evidence,

the Defen

dant fi led a st atement of

evidence in this case. Th us, the facts
upon which our decision is based are derived from that stat ement of evidence and the videotape of the field sobriety tests. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON May 8, 2001 Sess

ion

STATE OF TENNESSEE v. RUSSELL SNIDER

Appeal from the Criminal Court for Shelby County No. 99-05438 Chris Craft, Judge

No. W2000-01240-CCA-R3-CD - Filed June 26, 2001

The Defendant, Russell Snider, was convicted by a jury of third offe nse driving under

the influence (DUI). He was sentenced t o eleven months, twenty-nine days, with four months and twenty -nine days suspended. In this appeal as of right, the Defendant asserts (1) that he was prejudiced by the video recording o f his pe rformance of field sobriety tests because the video rec ording depicts an unqualified offi

cer performing

the horizontal ga

ze nystagmu

s test and (2) that the DUI sentencing statute is void for vagueness because it fails to give a person of ordina

ry intellig ence fair notice that his or her conduct is

forbidden by the statute. We hold that the Defendant was not prejudiced by the admission of the video and that the DUI sentencing statute is not void for vagueness. Therefore, we affirm the judg

ment of the trial c

ourt.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, i n which A LAN E. G LENN , J., j oined . L. T ERRY L AFFERTY , S R .J., not partic ipating.

Ronald Lucchesi, Memphis, Tennessee, for the Appellant, Russell Snider.

Paul G. Summers, Attorney General and Reporter; La ura E. McMullen, Assista

nt Attorney G

eneral; William L. Gibbons, Dis trict Attorney Ge neral; and James Powell, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The proof at trial established that on November 15, 1998, Of f icer M. McCollum of the Memphis Police Department obse rved the Defend

ant driving a 1975 Oldsmobile about te n to fifteen miles ov er the speed limit in a Memphis residential neighborhood. 1 The vehicle did no t have a-2-

license plate. Officer

McCollum testified t

hat he activate

d h is blue lights and siren, but the Defe nda nt d id n ot s top unt il h e rea ched his hom e, w hic h wa s se vera l bl ock s aw ay.

Officer McColl um testified that the Defenda nt pulled into his side

yard and e

xited his vehicle. According to the officer, the Defendant had a strong

odor of intoxicants about his person; he had bloodshot and watery eyes; he was swaying ; his reactions were slow; his speech was slurred; he was “thick-tongued”; and his clothes were soiled and disarranged.

Officer McCollum testified that field sobriety tests were administered to the Defendant. He explained that in one test t he De fendant did not touc h his heels to his toe

s; he used his arms to balance; and he stepped off the imaginary line upon

which he was asked to walk. He said that when the Defendant was administered the one-leg stand test, the Defendant used his arms to balance; he put his foot down; and he counted only to fifteen.

Officer B. Coppley o

f the Memp

his a nd Shelby County DUI Squad wa s the officer who administeredthese field sobriety tests, which were video tape d. Officer Coppley also offered the Defendant

a breath test, wh

ich the Defenda

nt r efused afte

r being told that h

e had failed the f

ield sobriety tests. The videotape of these field sobriety tests was play ed for the jury. In addition to the tests about which Officer McCollum testified, the videotape included footage of Officer Coppl e y administ er ing a horizontal gaze nystagmus test. Prior to the admission of the tape, the Defendant objectedto the video showing Officer Coppley administering the horizontal gaze ny stagmus t est because Officer Coppley was unqualified to administer that test. After a jury-out hearing, the trial court ruled that the tape would be admitted, but the jury would be instructe

d not to consider thi

s test, as the officer was not qualified to administer it.

The Defendant testified that on the day in question, he had b een worki ng on his for mer lyinoperable

1975 Oldsmobile. While test-driving the vehicle, the Defendant had gone to pur chase gasoline, and he was on his way home prior to the arrest. The Defendant admitting drinking one beer that day, but he asserted that he was not intoxicated and that his driving ability was unimpaired. He further testified that he did not

stop immediately because the police car did not have the siren on and he did not see the blue lights. Once he noticed the blue lights, the Defendant proceeded one block further and stopped at his own home. The Defen dant believed he

had passed the fie

ld sobriety te

sts, and when he was advised that he had failed those tests, he chose not to take the breath alcohol test.
Beverly Snider, the Defendant’s wife, testified that her husband had been working that day

on their second automobile, which had not been operating in some time. She said that her husband probably had a beer, but he never appeared to be under the influence o f intoxicants. Ms. Snider stated that she never heard a police siren, and she was su

rprised t o realize that her husband was under arrest in the side yard.

The Defendant’s next-door neighbor, Debbie Oliver, testified that she was present when the Defendant

was arrested. She asserted that the Defendant did not appear to be intoxicated or under the influence of intoxicants. Like Ms. Snider, she never heard a siren.-3-

Following the proof and verdict of guilty of DUI, the Defenda nt stipulated that he had been previously convicted

of DUI on June 11, 1986 and again on March 23, 1990. The Defendant was then convicted of third offense DUI.

ADMISSION

OF VIDEOTA

PE In this issue, the Def

endant presents a

rather novel ar

gument. He essentially asserts that the continuing practice of the Memphis Police Dep

artm ent of vide otaping the administration of the horizontal gaze nystagmus test by an of ficer not qualified to testify at trial about the results of that test vio lat es t he d ue p roce ss r ight s of defe nda nts by t ainting otherwise exculpatory evidence. I n State

v. Murphy , 953 S.W.2d 200 (Tenn. 1997), our supreme cour t held that t

estimony concerning the horizontal gaze nystagmus field sobriety test “constitutes ‘scientific, technical, or other specialized knowledge.’ As such, it must be o ffer ed t hro ugh a n ex pert wit nes s an d mu st m eet the [ev ide nti ary] requirements”

for expert testimony. Id. at 203 (quoting Tenn. R. Evid. 702). The Defendant claims that the Memphis Police D

epartment routine

ly and knowin

gly administers this

test by persons who

are not qualified as expert witnesses and who will not be allowed to testify about the test at trial. The test is videotaped alon

g with the other field sobriety tests. Oftentimes, acc ording to the Def

endant, the videotape of the field sobriety tests will constitute exculpatory evidence beca use the person performing those

tests will perform in a sober manner. By having those tests on videotape, the jury is able to see for itself the defendant’s performance on t hose tests and therefore i ndependently evaluate w he ther the defendant was intoxicated. However, the Defendant argues that by administering the horizontal ga ze nystagmu

s test, the Memphis Po

li ce De partment “negates the exculpatory

benefits of the video when a jury sees a person

perform well on the video, but is then arrested when the

Police Officer looks into the defendant’s eyes and performs this test. . . . A jury is left with the sense that, while this person appears to be unimpaired, the Police Officer, for some
reason, still saw fit to arre st him for DUI. ” The Defendan t argues that thi

s type of sce

nario is precisely what happened to

him in this case

and that he was prejudiced because of it. He therefore asks this Court to reverse his conviction.

In this case,

Officer Coppley

did perform the ho

rizontal gaze ny

stagmu s test on th e Defendant,

the test was videot

aped along with t

he other field sob

riety tests, and the trial court ruled that the results of the test were inadmissible because Officer Coppley was not qualified a s an expert witness to administer

and testify about the test. Because the trial court found the results o

f the test to be inadmissible, it i

nstructed the jur

y not to consider the test. Nevertheless, the Defendant asse

rts that the vide otape was exculpatory and that his conviction must have been the result of the jury seeing the Defendant’s arrest after being administered this test which the jury was not supposed to consider. While we agree withthe Defendant that thevideotape was exc ulpatory ev

idence in this
case, we cannot conclude that he was prejudiced

by the depiction of the horizontal gaze nystag mus test on the videotape.

Officer McCollum testified that when he observed the Defendant, the Defendant had a strong odor of intoxicants about his person; that he had bloodshot an d watery e

yes; that his

reactions were slow; and that his speech was slurred. Officer McCollum also testified about the Defendant’s poor performance

on the field sobriety tests. The jury was then shown the videotape, which in our opinion-4-

appears to contradict Officer McCollum’s testimony that the Defendant’s speech was slurred, that his reactions were

slow, and that he performed poorly on the field sobr iety tests. No twithstan ding, all questions involving

the credibility

of witnesses, the weight and value to be given the evidence, and all factual issues a

re resolved by

the trier of fac

t, not the appellat

e courts. See State v. Morris
, 24 S.W.3d 788, 795 (Tenn. 2000); Statev. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Obv iou sly, the jury accredited the testimony of the officers regarding the Defendant’s sobriety and/or had a different interpretation than does this Court of the Defendant’s performance on the videotape.

In spiteof our finding that the videotape was exculpatory, we cannot find that the Defendant

was prejudiced by

the admission

of a video

of the off

icer admi nistering the horizo

ntal gaze nystagmustest. Although the videotape does show Offi cer Cop pley administering the test, that depiction reveals nothing about the D efendant’s state of intoxication. It simply shows the officer shining a light

in front of

the Defendant’ s eyes. As a sserted by o

ur supreme court

, a witness must explain the underlying scientific basis of the t est in order for the testimony to be meaningful to a jury. Murphy , 953 S.W.2d at 202 . Th e un derl ying b asi s of the tes t wa s no t ex pla ine d to the jur y; neither office r testified ab out the test; and the jury was inst

ructed to disreg

ard it. The jury

is presumedto have followed instructions to disregard evidence. State v . Walker , 910 S.W.2d 381, 396-97 (Tenn. 1995); State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim App. 1991). Moreover, the videotape reve

als that the De fendant was informed prior to performing any tests that he was under arrest for suspicion of DUI. He was then administered the one-leg stand test, the walk and turn test, and finally

the horizontal gaze nystagmus test. Because the Defenda nt was told on the tape that he was under arrest prior to taking any tests, the videotape does not g ive rise to the assumption that his performance on

the horizontal ga

ze nystagmu

s test caused his a

rrest. Because w e can find no prejudice to the Defendant due to the videotape, he is entitled to no reli ef. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

CONSTITUTIONALI

TY OF DUI SENTENCING STATUTE The Defendant next argues that the DUI sentencing stat

ute is void for vag

ueness because

it sets forth two separate standards for determining whether a d efendant is a multiple DUI offender. He asserts that the st

atute first states that

the ten-year period for determining prior convictions runs from conviction of the last offense to conviction of the present offens e, and then the sta tute contradicts itself by stating that the ten-year period runs

from the date of the last conviction to the date of the present offense.

“A statute is void for v

agueness if it

is so vague, inde

finite, and uncer

tain that persons mu

st speculate as to its meaning, and if it fails to give a person of ordinary in

telligence fa

ir notice that his

or her conduct is forbidden by the statute.” State v. Whaley , 982 S.W. 2d 346, 348 (Tenn. C rim. App. 1997); see also Grayned v. City of Rockford , 408 U.S. 104, 108 (1972) ; Unite d States v. Harriss , 347 U.S. 612, 617 (1954). However, “[t]he vagueness doctrine does not invalidate every statute which a reviewing court believes could have been drafted with greater precision.” Statev. Lyons
, 802 S.W.2d 590, 592 (Tenn. 1 990); see also Sta te v . Boyd , 925 S.W.2d 237, 243 (Tenn. Crim. App. 1995). The appellate courts have the duty to “adopt a constru

ction which will sust

ain-5-

a statute and avoid constitutional conflict if its recitation permits such a construction.” Lyons , 802 S.W.2d at 592.

“The most basic principle of statu tory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage be y o nd its intended scope.” Owens v. State , 908 S.W.2d 923, 926 (T enn. 1995). This Cou

rt is to determine legislative intent“from the natural and ordinary meaning of the statutory lang uage within the context of the entire statute without any forced or subtle

construction that

would extend or limit

the statu te’s meanin g.” Sta te v. Flemming , 19 S.W.3d 195, 197 (Tenn. 2000). Moreover, the legislature has provided that criminal statu te s are to “be cons

trued according

to the fair import o

f their terms, including reference to judicial decisions and com mon law int erpretations, to promote justice, and effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104; see also State v. Owens
, 20 S.W.3d 634, 640 (Tenn. 2000).

The statute at issu

e provides as foll

ows: For purposes of this section, a person who is convicted of a violation of [DUI] shall notbe considered a repeat or multiple offender and subject to the penalties prescribed in subsection (a), if ten (10) or more years have elapsed betwee n such conviction and any imm edi ate ly preceding conviction for a violation. If, however, a person has been convictedof a

violation of [DUI] within ten (10) years of the present violation , then such person shall be considered a multiple offender a nd is su bject to the penalties imposed upon multiple offenders by the provisions of subsection (a). If a person is consider ed a mu lti ple off end er un der t his sub div isi on, the n ev ery conviction for a violation of

[DU I], w ith in t en (1 0) yea rs o f th e im med iat ely preceding violation shall be co nsidered in deter

mining the number

of prior offense

s, but in no event sha

ll a conviction for a violation occurring more than twenty (20) years from the date of

the instant conviction be considered for such purpose.

Tenn. Code Ann. § 55-10-403(a)(3) (emphasis added). The Defendant asse

rts that this statute

is void for vagueness be caus e in the first sente nce, the statute a

sserts that a pers

on convicted of DU

I will notbe a considered a multiple offender if ten or more years have passed between the present conviction and any i mme dia tel y preceding conviction , but in the second s entence the stat

ute asserts that if a person is convicted of DUI, that person will be considered a multiple offender if that person

was convicted

of DUI within ten years of the present offense . Thus, the Defen dant asserts t

hat i n
one sentence, the ten-year period is measured from date of conviction to date of conviction , butin the next sentence, the ten-year period is measured from date of offense to date of conviction

.

We first note that under

the Defendant’s interpretation of the statute, his own conduct would still qualify him a

s a multiple offend

er. “[E]ven if a sta

tute may be cons

idered vague r

elative to its prohibiting cer

tain conduct,

it may be viewed sufficiently clear regarding other conduct.” State v. Butler
, 880 S.W.2d 395, 397 (Tenn. Crim. App. 1994). Thus, even if the statute is considered vague

as to the triggers measuring the ten-yea r period, the Defendant’s immediately preceding p rior conviction is within the ten-year period, regardless of which way the time-frame is

measured. The-6-

Defendant

has two prior convictions: one on March 23, 1990 and one on June 11, 1986. H e was arrested for DUI on November 15, 1998, and he was convicted by a juryon January 26, 2000. Therefore, both the date of his present offense and the date of his present conviction are within ten yearsof his immediately precedi ng conviction. Because th e Defendant’s p rior convictions a

re clearly within the ten-year period no mat ter how it is measured, the statute is not void for vagueness as applied to his conduct. Nevertheless, we have also considered the language of the statute, and we conclude that the statute itself is not void for vagueness.

We ag ree with the Def

endant that the la

nguage used i

n the statute is con

fusing, and it certainly could have been more artfully drafted, but we do not believe that it is so “vague, indefinite, and uncert ain that persons must speculate as to its meaning, [or that] it fails to give a person o f ordinary intelligence fair notice that his or her conduct is forbidden by the statute.” Wha ley , 9 82 S.W.2d at 348. The first sen tence of the stat

ute clearly

asserts that a DU

I offender will not b e considered

a multiple offender if ten or more years have elapsed between the present conviction and any immediately preceding conviction

. Tenn. Code Ann. § 55-1 0-403(a)(3). This sentence measures the ten-year period from the date of the present conviction to the date of the prior conviction. Thus,

a person of ordina

ry intellig ence is put on notic

e that if ten or more years

have elapsed between DUI convictions
, he or she cannot be considered a multiple offender. The next sentence of th e statute then provides, “If, however, a person has been convictedof a violation of [DUI] within ten (10) years of the present violation , then such person shall be consider

ed a multip le of

fender.” Id. (emphasis added). The Defendant interprets the use of the words“present violation” to mean “present offense.” He claims that this sentence measures the ten-year period from the date of the pr

esent offense

to the date of the prior conviction . Howev er, looking at the statute as a whole, we believe that the legislature used the words “violation” and “conviction” interchangeably in the statute.

Under any interpr

etation of these f

irst two sentence

s, it is obviou s that the legislature intended to look back into time at the date of the prior conviction , not the date of the prior offense
, to determine whether a person is a multiple offender. See id. Yet, in the third sentence the statute asserts, “If a person is considered a multiple offender

und er t his sub div isi on, the n ev ery conviction for a violation of [DUI], within ten (10) years of the immedi ately pre ceding violationshall be considered

in determining th

e numb er of prior offenses.” Id. (emphasis added). The legislature again us ed the t erm “violation,” rather than “conviction” or “offense,” when setting forth the ten-y ear measuring date. Nevertheless, this sentence is only applicable if a per son has been f

ound to be a multiple offender under the first part of the statute. If a person is a multiple offen

der under the fir

st part of the statute, the

n the statute looks b

ack an additio

nal ten years to determine the number of prior offenses.

It would crea

te an absurd resu

lt to follow the first pa

rt of the statute

and look back ten years to the im mediately prec eding conviction to de ter mine whether a pe rson is a multiple offender, and then, if the pe rson is a multiple

offender, look b

ack ten ye ars not from the date

of this immediately

preceding conviction butinstead from the date of the i mmediatel y preceding offense to determine the number of prior DUI offenses. Yet, if the legislature mean t the use o f the term “violation” to mean “offense,” this is just what the statute would require us to do. Moreover, in the last sentence the legislature limits the total number of years which may be examined in determining the number of prior of

fenses to twenty

years “fr om the date

of the instant conviction.” Id. It is clear2 We note that another panel of this Court recentl

y reached t

he same concl

usion re garding t he measure

ment of the ten-year time pe riod using sim ilar analysis. See State v. Sean W. Conway , No. M2000-01263-CCA-R3- CD, 2001 WL 4876 89, at *6-9 (Tenn. Crim. App., Nashville, May 8, 2001).

-7- that the legislatureintended to prevent consideration of any prior convictions occurring more than twenty yearsbefore the insta

nt conviction , rather than the instant offense . We do not see any reason for the legislature to have decided to measure the total number of ye ars that can be considered from the instant conviction, while measuring the first ten-year period from the instant offense. Therefore,

we conclude fr om “the nat ural and ord inary meaning of the statut ory language within the context of the entire statute without any forced or subtle construction that would extend or

limit the statute’s meaning,” see Flemming , 19 S.W.3d at 197, that the legislature intended to measure the ten-year period, in all contexts, from conviction to conviction . We li kewise conclude that this statute is accordingly not void for vagueness.

Furthermore, our interpretation of this statute is supported by its legislative history. Prio

r to 1998, the statute pr

ovided as follows: For purposes of this

section, a person whose convictions for violating the provisions of § 55-10-4 01 [the DUI statute] occur more than ten (10) years a part shall not be considered

a multiple offender and the penalties imposed upon multiple offenders by the provisions of subsection (a) do not apply to such person.

Te nn. Cod e Ann. § 55-10-403(a)(3) (amended 1998). This statute measured the ten-y ear period from conviction to conviction. See State v. Marvin E. Sizemore , No. 03C01-9209-CR-00326, 1994 WL 369733, at *2 (Tenn. Cri m. App., Knoxville, July 15, 1994) (holding

that the ten-y

ear period is measured from conviction to conviction). In 1998, the legislature amended the statute by deleting this language and inserting the language at issue in this case. See 1998 Tenn. Pub. Acts 926. The bill summary used

on all of the legislative calendars indicated that the purpose of the legislation was to “[c]larif[y] th

at subsequent viola

tions of DUI la

w within ten y

ears a re to be considered when de termining whether offender is multiple offender.” The Senate sponsor asserted tha t the onl y change from current law was to create a “rolling ten y ear r eview,” in wh ich prior convictions

occu rring more than ten years from the instant conviction could be considered if the offe nder ha d

a conviction within the first ten years. The House sponsor also asser ted that the only change the l egislation made was to take care of the problem of DUI offender s who might have three pri o r convictions,

but only two convictions within the ten year time window; under the new law, all prior convictions could be considered. Thus, the legislative history establishes that the legislature did not intend to change the law so that the ten-year period would be measured from the date of the present offense to the date of the prior conviction, but the legislature

intended to

change the law so that prior convictions outside the original ten-year time period could be considered if an offende r hada prior conviction within the original ten-year time period. 2-8- CONCLUSION We hold that the Defendant was not prejudiced by the admission of the videotape depicting the administration of the horizontal gaze nystagmus test and that the DUI se ntencing statute is not void for vaguen

ess. According

ly, we aff irm the judgment o

f the trial court.

___________________________________ DAVID H. WELLES, JUDGE