FILED

March 4, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9607-CR-00283

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. THOMAS H. WARE

WILLIAM F. HEGGER, ) JUDGE

)

Appellant. ) (Direct Appeal - D.U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

ROGER K. SMITH JOHN KNOX WALKUP

Suite 115 Attorney General and Reporter

104 Woodmont Boulevard

Nashville, TN 37205 PETER M. COUGHLAN

(On Appeal) Assistant Attorney General

450 James Robertson Parkway

KARL DEAN Nashville, TN 37243

Public Defender

VICTOR S. JOHNSON

MICHAEL FRIEDLAND District Attorney General

Assistant Public Defender

12th Floor, Stahlman Building PATTY S. RAMSEY

Nashville, TN 37201 Assistant District Attorney

(At Trial) Washington Square, Ste. 500

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On May 17, 1994, a Davidson County jury found Appellant, William F.

Hegger, guilty of driving under the influence of an intoxicant, first offense. The

trial court sentenced Appellant as a Range I standard offender to eleven

months and twenty-nine days incarceration (all but ten days suspended),

imposed a two-hundred and fifty dollar fine, ordered Appellant to attend

alcohol treatment school, and suspended Appellant’s driver’s license for a

period of one year. Appellant was further ordered to perform two hundred

hours of public service work. On February 22, 1996, following a hearing upon

Appellant’s motion, the trial court modified Appellant’s sentence, waiving the

fine and public service work. The trial court found that Appellant had

completed his jail time, and the one year suspension of his license. Appellant

filed a timely notice of appeal, raising several issues, namely:

1) whether the trial court erred in allowing evidence regarding the

horizontal gaze nystagmus (HGN) test;

2) whether the trial court erred in admitting the testimony of Lt. Louise

Kelton;

3) whether the evidence was sufficient to support the jury verdict;

4) whether the defense counsel provided effective assistance of

counsel.

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

FACTS

On May 20, 1993, Officer Danny Hale of the Metro-Davidson County

Police Department observed Appellant’s automobile on the edge of a median

and a turn lane on Murfreesboro Road in Nashville. Appellant was in his
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vehicle, apparently trying to move it. Officer Hale stopped to see if he could be

of assistance and, in talking with Appellant, noticed the order of alcohol on

Appellant’s person. When Appellant got out of his car, he staggered;

Appellant’s speech was slurred, and the officer detected that his eyes were

glassy and bloodshot.

Officer Hale requested that Appellant perform a series of field sobriety

tests; Appellant complied, preforming the horizontal gaze nystagmus test, the

one leg stand test, and the heel to toe walk and turn test. Office Hale reported

that Appellant performed poorly on these tests. The officer then requested that

Appellant submit to a breath alcohol test, which Appellant refused. Officer

Hale then placed Appellant under arrest.

HORIZONTAL GAZE NYSTAGMUS

In his first assignment of error, Appellant contends that the trial court

erred in allowing the State to present evidence regarding Appellant’s

performance on the horizontal gaze nystagmus test. Appellant argues that to

admit such evidence without first requiring the State to establish the general

acceptance of the test by the scientific community is reversible error. In State

v. Murphy, the Tennessee Supreme Court resolved this issue, holding that the

HGN test is a scientific test and that to be admissible at trial, evidence

regarding the test must satisfy the requirements of Tennessee Rules of

Evidence 702 and 703. State v. Murphy, ___ S.W .2d ___ (Tenn. 1997), S.Ct.

No. 01-S-01-9602-CC-00035, Davidson County (Tenn., Nashville, Oct. 13,

1997). In Murphy, as in the case sub judice, the appellant was arrested for
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driving under the influence of an intoxicant. The arresting officer performed

field sobriety tests including the HGN test. The Supreme Court held that

because the average juror would not know about the correlation between

alcohol consumption and nystagmus, testimony concerning the test

constituted “scientific, technical, or other specialized knowledge” State v.

Murphy at 8. The Supreme Court held that as scientific evidence, testimony

regarding the HGN test must be offered through an expert witness. Id..

Because the evidence regarding the HGN test in Appellant’s trial was

presented by a witness not qualified as an expert, we find that the trial court

should not have allowed the admission of this testimony. However, in light of

the overwhelming evidence of Appellant’s guilt we find that this error was

harmless.

SUFFICIENCY OF THE EVIDENCE

Appellant also challenges the sufficiency of the evidence to support the

jury verdict of guilt, arguing that his failure of two field sobriety tests (one leg

stand and walk and turn heel to toe) does not constitute sufficient evidence to

sustain the jury verdict. We do not agree. 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); State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). Although an accused in originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of
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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 [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. (Citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). 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. Harris, 839 S.W.2d 54, 75;

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); State v. Mathews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its

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

evidence.” State v. Mathews, 805 S.W.2d at 779. Finally, the Tennessee

Rules of Appellate Procedure, Rule 13(e) 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.” See also State v. Mathews, 805 S.W .2d at 780. 

In addition to the properly admitted testimony concerning two of the field

sobriety tests, there was testimony about how Appellant smelled of alcohol,

staggered and had bloodshot eyes. Further, the jury heard testimony that

Appellant refused an alcohol breath test, from which the panel could have

inferred Appellant had been drinking. See, State v. Wright, 691 S.W.2d 564
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(Tenn. Crim. App. 1985); State v. Smith, 681 S.W.2d 569 (Tenn. Crim. App.

1984); (admission of evidence of refusal to take blood alcohol test not a

violation of privilege against self-incrimination.) We find that a rational trier of

fact could conclude beyond a reasonable doubt that Appellant was in control

of the automobile and that he was under the influence of an intoxicant. This

issue is without merit.

TESTIMONY CONCERNING COMPLAINT AGAINST ARRESTING OFFICER

In his next assignm ent of error, Appellant argues that the trial court

erred in allowing the State to present evidence of a complaint he filed against

Officer Hale. He alleges that the testimony was irrelevant, prejudicial and

violated his right to due process under the Fifth and Sixth Amendments to the

United States Constitution and Article 1, §§ 8 and 9 of the Tennessee

Constitution. The record shows that Appellant failed to object to the State’s

line of questioning until the State had elicited testimony that Appellant had

filed a claim, the nature of the claim, and that the witness had investigated

Appellant’s claim. Failure to make a contemporaneous objection waives

consideration by this court of the issue on appeal. See T.R.A.P. 36(a);

Teague v. State, 772 S.W .2d 915, 926 (Tenn. Crim. App. 1988), perm. to

appeal denied, id. (Tenn. 1989); State v. Killebrew, 760 S.W.2d 228, 235

(Tenn. Crim. App.), perm to appeal denied, id. (Tenn. 1988). Appellant did

eventually object to the State pursuing a line of questioning regarding the

investigation of Appellant’s claim against Officer Hale. The trial court sustained

Appellant’s objection. Appellant failed, however, to make a motion to strike the
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preceding testimony. Appellant is not entitled to relief for an error that a timely

objection could have prevented. This issue is without merit.

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant also argues that he did not receive effective assistance of

counsel. This claim arises from the fact that his attorney attempted to call a

Mr. Opilacki and when informed that the witness was not waiting in the hall

proceeded on with trial without making any attempt to secure the witness and

without making an offer of proof as to what the witness’ testimony would have

been. When an appellant claims he received ineffective assistance of counsel,

the burden is upon him to show that 1) his counsel’s performance fell below

the objective standard of reasonableness and 2) that the deficiency prejudiced

the appellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed. 2d 674 (1984). In order to establish prejudice, the appellant

must show that there is a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is

one sufficient to undermine confidence in the outcome. Id. (See also State v.

Seay, 945 S.W.2d 755 (Tenn. Crim. App. 1996) perm. to appeal denied (Tenn.

1996). Appellant has presented nothing to this Court (or to the trial court at the

hearing on the motion for a new trial where Appellant was represented by a

lawyer other than the one whose competence he attacks) to indicate what the

testimony of this witness would have been. Appellant has not met his burden
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of establishing that he was prejudiced by trial counsel’s decision to continue

without the appearance of Mr. Opilacki. This issue is without merit.

For the reasons discussed above, the judgment of the trial court is

affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

WILLIAM M. BARKER, JUDGE