# FILED
March 4, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9607-CR-00283 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H.WARE WILLIA M F. HEGGER, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)

FOR THE APPELLANT : FOR THE APPELLEE : ROGER K. SMI TH JOHN KNOX WALKUP Suite 115 Attorney Generaland Reporter 104 W oodmo nt Boulevard Nashvill e, TN 37205 PETER M. COUGHLAN (On A ppea l) Assistant Attorney General 450 James Robertson Parkway KARL DEAN Nashvill e, TN 37243 Public Defender VICTOR S . JOHN SON MICHAEL F RIEDLAND Distri ct Attorney General Assistant Public Defender 12th Floor, Stahlman Buildi ng PATTY S. RAMSEY Nashvill e, TN 37201 Assistant Distri ct Attorney (At Tr ial) Washington Square, Ste. 500 Nashvill e, TN 37201-1649 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION On May 17, 1994 , a Davi dson County jury found Appel lant, William F. Hegger, guil ty of driving under the infl uence of an intoxicant, first offense. The trialcourt sentenced Appellant as a Range I standar d offender to eleven months a nd twenty-nine d ays incarceration (all but ten days sus pended ), imposed a two-hundredand fift y dollar fine, or dered Appellant

to attend alcohol treatm ent school, an d suspen ded App ellant’s driver’s license for a period of one year. Appell ant was furt her ordered to perform two hundr ed hours of publ ic servi ce work. On February 22, 1996, following a hearing upon Appellant’ s motion, t he trialcourt modif ied Appellant’s sentence, waiving t he fine and publ ic servi ce work. The trial court found that Appellant had completed his j ail ti me, and the one year s uspension of hi s license. Appellant filed a timely notice of app eal, raising several issue s, namely:
1) whether t he trialcourt err ed in all owing evidence regarding t he horizon tal gaze n ystagm us (HG N) test; 2) whether the tri al court erred i n admitting the test imony of Lt. Louise Kelton; 3) wheth er the evid ence w as sufficien t to suppo rt the jury verd ict; 4) whether t he defense counsel provided ef fectiv e assistance of coun sel.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On M ay 20, 19 93, Office r Dann y Hale of th e Metro -Davids on Co unty Police Depart ment observed Appell ant’s automobile on the edge of a median and a turn lan e on M urfree sboro Road in Nas hville. A ppella nt was in his-3-

vehicle, apparently

tryi ng to move it. Officer Hale stopped to s ee if he coul d be of assistance and, in talking wi th Appellant , notice d the order of alcohol on Appellant’ s person. When Appellant g ot out of hi s car, he staggered; Appellant’s spe ech was s lurred, and the officer d etected that his eye s were glassy an d blood shot.

Officer H ale requ ested tha t Appella nt perform a series o f field sobriety tests; Appel lant compli ed, preforming the hori zontal gaze nystagmus test, the one leg stand test, and t he heel to toe walk and turn test. Of fice Hale r

eported that Appell ant performed poorly on thes e tests. The officer then requestedthat Appellant sub mit to a breath alcohol test, whic h Appellant r efused. Off icer Hale the n placed Appella nt unde r arrest.

HORIZONTAL GAZ E NYSTAGMUS
In his first assignme nt of error, Appellant co ntends that the trial court erred in allow ing the State to prese nt evide nce re gardin g App ellant’s perform ance o n the ho rizontal ga ze nysta gmus test. App ellant argu es that to admit such evi dence without first requiri ng the State to establi sh the general acceptance of t he test by t he scienti fic community is rever sible err or. In State v. Murphy , the Tennessee Supreme Court resolved t his issue, holding t hat the HGN test is a scientifi c test and that to be admissibl e at trial , evidence regarding t he test must sat isfy t he requirements of Tennessee Rules of Evidenc e 702 a nd 703
. State v. Murphy , ___ S.W .2d ___ (Tenn . 1997), S .Ct. No. 01-S-01-9602- CC-00035, Davidson County (Tenn., Nashvi lle, Oct . 13, 1997). In Murphy , as in t he case sub judice , the appel lant was arr ested for-4-

drivi ng under the i nfluence of an intoxi cant. The arresting of ficer per formed field s obriety

tests i ncluding t he HGN test. The Supreme Court hel d that because the averagejuror woul d not know about t he correlat ion between alcohol consumption and nystagmus, testimony concerning t he test constituted “scien tific, technical, or other specialized knowledge ” State v. Murphy at 8. The Supreme Court hel d that as sci entifi c evidence, testimony regardin g the HG N test m ust be offe red throu gh an e xpert witne ss. Id
.. Because the evidence regarding t he HGN test in Appell ant’s trial was presented b y a witness not qu alified as an expert, we find that the trial court should not have allowed t he admission of this test imony. However, in li ght of the overwhel ming evidence of Appellant’ s guilt

we find that this error was harmless.

SUFFICI ENCY OF THE EVI DENCE
Appellant al so challenges the suffi ciency of the evidence t o support the jury ver dict of guilt, arguing that his fai lure of t

wo field s obriety

tests (oneleg stand a nd walk and turn heel to toe ) does n ot constitu te sufficient e vidence to sustain t he jury verdict. We do not agree. When an appellant chal lenges the suffic iency of t he evidence, this Court i s obliged to review t hat chall enge according to c ertain well-settled principles. A verdict of guilty by the jury, approved by t he trialjudge, accr edits th e testimony of the State’ s witnesses and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Alt hough an accused in or iginal ly cloaked with a pres umption of innocence, a j ury verdi ct removes thi s presumption and r eplaces it

with one of-5-

guilt. State v. Tug gle , 639 S .W .2d 91 3, 914 (Ten n. 198 2). He nce, o n app eal, the burden of pr

oof rests with Appellant to demonstrate the insuf ficien cy of the convicting evidenc e. Id. On appeal, “the [S]tate is entitl ed to the strongest legitimate view of the e vidence as well as all reason able an d legitima te inferences tha t may be dra wn therefrom .” Id . ( Citing State v. Cabbage , 571 S.W .2d 83 2, 835 (Ten n. 197 8)). W here th e suffic iency o f the evid ence is contested on appeal , the rel evant questi on for the r eviewing cour

t is wheth er any rati onal tri er of fact could have found the accused gui lty of every el ement of the offen se beyo nd a rea sonab le doub t. Harris , 839 S.W.2d 54, 75; Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979 ). In con ductin g our e valuatio n of the convic ting evid ence , this Co urt is preclud ed from reweigh ing or reco nsidering the evide nce. State v. Morgan , 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v . Mathews , 805 S.W.2d 776, 77 9 (Ten n. Crim. A pp. 199 0). More over, this C ourt ma y not sub stitute its own inferences

“for t hose drawn by the t rier of fact fr om circumstanti al evidence.” State v . Mathews , 805 S.W.2d at 779. Fi nally, the Tennessee Rules of Appell ate Procedure, Rule 13(e) provides, “ findings of guil t in cri minal action s whe ther by the trial c ourt or jury sha ll be set aside if the evid ence is insuffic ient to s uppo rt the find ings b y the trie r of fact b eyond a reas onab le doubt.” See also State v . Mathews , 805 S.W .2d at 780
.

In add ition to th e prop erly ad mitted testim ony co ncern ing two of the fie ld sobrie ty tests, th ere wa s testim ony ab out ho w App ellant s melle d of alc ohol, staggered and had bl oodshot eyes. Further, the jury heard testi mony that Appellant refus ed an alcoh ol breath test, from w hich the pane l could have inferred A ppellant h ad bee n drinking . See, State v. Wright , 691 S.W.2d 564-6-

(Tenn . Crim. A pp. 198 5); State v. S mith , 681 S.W.2d 569 (Tenn. Cri m. App. 1984); (a dmiss ion of evide nce of re fusal to tak e blood alcohol te st not a violat ion of privilege agai nst self-incri mination.)We find that a rat ional trier of fact coul d conclude beyond a r easonable doubt t hat Appellant was in contr

ol of the a utom obile a nd tha t he wa s und er the in fluenc e of an intoxica nt. Th is issue is w ithout me rit.

TESTIMONY CONCERNING COMPLAINT AGAI NST ARRESTING OFFICER
In his next assignm ent of error, Appe llant argues that the trial cou rt erred in allowi ng the State to present evi dence of a complaint he filed agai nst Officer Hal e. He alleges that the testimony was i rrelevant , prejudi cial and violated his ri ght to due process under the Fi fth and Six th Amendments to the United States

Constitut ion and Arti cle 1, §§ 8 and 9 of the Tennessee Con stitution . The record show s that A ppella nt failed to obje ct to the State’s line of questioni ng until the State had el icitedtestimony t hat Appellant had filed a claim, t he nature of the claim, and t hat the wit ness had invest igated Appellant’ s claim. Fai lure to make a contemporaneous objecti on waives conside ration by this court of the issue on appea l. See T.R.A.P. 36 (a); Teag ue v. State , 772 S.W .2d 915 , 926 (T enn. C rim. App . 1988), perm . to appeal denied , id . (Tenn . 1989); State v. Killebr ew , 760 S.W.2d 228, 235 (Tenn . Crim. A pp.), perm to appeal denied , id . (Ten n. 198 8). Ap pellan t did eventually object t

o the State pur

suing a li ne of questi oning regardi ng the investi gation of Appellant’ s claim against Officer Hale. The trial court sustained Appellant’ s objecti on. Appellant failed, however, to make a motion to st rike the-7-

prece ding te stimo ny. Ap pellan t is not e ntitled to relief for a n error that a tim ely objection could ha ve preve nted. Th is issue is w ithout me rit.

EFFECTIVE ASSI STANCE OF COUNSEL
Appellant al so argues that he did not receive effective ass istance of
coun sel. Th is claim arises from th e fact th at his a ttorney attem pted to call a Mr. O pilack i and w hen in forme d that th e witne ss wa s not w aiting in the ha ll proceeded on wit h trialwithout maki ng any attempt t o secure the wi tness and without mak ing an offer of proo f as to what the witne ss’ testimony wo uld have been . W hen a n app ellant c laims he rec eived in effective assista nce o f coun sel, the burden is

upon him to show that 1) his counsel ’s performance fell bel ow the object ive standar

d of reasonabl eness and 2) that the defic iency prej udiced the app ellant. Strickl and v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 6 74 (1984). I n order to establish prejudice, the appell ant
mus t show that the re is a re ason able p robab ility that, bu t for cou nsel's deficient p erforma nce, the re sult of the p roceed ing wou ld have b een differe nt. Strickl and , 466 U .S. at 69 4, 104 S.Ct. a t 2068 . A reas onab le prob ability is
one su fficient to und ermine confiden ce in the o utcom e. Id. ( See also State v. Seay , 945 S.W .2d 755 (Te nn. Crim. Ap p. 1996) perm. to appeal denied (Tenn. 1996). Appell ant has presented nothing to this Court (or to t he trialcourt at the hearing on the motion for a ne w trial where App ellant was repres ented by a lawyer ot her than the one whose competence he attac ks) to i ndicate what the testimony of

this wi tness would have been. Appella nt has not met hi s burden-8-

of establ ishing t hat he was prej udiced by trial counsel ’s decisi on to conti nue without the appea rance o f Mr. Opilac ki. This issu e is withou t merit.

For the reaso ns disc usse d abo ve, the ju dgm ent of th e trial co urt is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLI AM M. B ARKER, JUDGE