# FILED

Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE APRIL 1995 SESSI ON
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9501- CC-00001

) ) Coffee County v. ) ) Honorable Ger

ald L. Ewel l, Sr., Judg e ) WILLARD C. COOK, SR., ) (Driv ing Under the Influence) ) Appellant. ) For the Appell ant : For the Appell ee : Robert S. Peters Charles W. Burson 1 0 0 F i r s t A v e n u e , S

. W. Attorney Gen eral of Tennessee Winchester, TN 37398 and Sharon S. Selby Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 C. Michael Layne Distric t Attorney General and Stephen E. Weitzman Assistant D istrict A

ttorney Gener

al 307 S. Woodland P.O. Box 147 Manchester, TN 37355

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Willard C. Cook, Sr ., was con victed by a jury i n the Coffee County Ci rcuit Cour

t of drivin g whil e under the influenc e of an intoxicant. He w as sentenced to eleven months, twen ty-nine day s in jail, to be suspended upon serving two hundred forty hours in confine ment, and fine d three hundred fif ty dollars. In this appea l as of righ t, the d efen dant es sentia lly conten ds the f ollowing:

(1) t he evi dence was ins ufficie nt to c onvi ct him ; (2) the trial court erred i n admitting i nto evide nc e the defendant ’s breath test result, holdingthat he wai ved objecti on bynot proceedi ng by a pretr ial motion to s uppress, w hen the proof showed that the defendant took the test with hi s dentures in his mouth; (3) the trial court erred in rejecting t he defendant’s requ ested juryinstructi on to the effect that the jur y could not consider the breath test result until the jury determined that certain preliminary

facts had been placed into evid ence. Although we hold that the tr ial court er red in deeming the defendant’s objec tion to be waived , we affirm the j udgment of the tri al court.

Tennessee Highw

ay Patrolman Don Kelsey testified that after

2:00 a.m., July 10, 199 3, near Manches ter, he saw a car drifti ng from lane to l ane without signaling . He said he stopped the car a s it was about to enter thewrong way on aoneway road. He said that the defendan t was driving and that he noticed an alcoholic beverage smell on the defendant’ s breath, w ho also had bloods hot eyes. The defendant admitted drinking and Troop er Kelsey found a half-em pty half-pint bottle in the car.
Trooper Kelsey testified that th e defendant had some troubl e maintaining his balance in getting out of his car. He said that he gave the defendant two field sobriety tests, the hori zontal g aze nyst agmus test and a walk and t urn test. Hestated that the defendant’s eyes bounced, indi cating the defendant was under the influence of3

alcohol, and that

he was unabl e to keep his bal ance in wal king heel- to-toe. Trooper Kelsey ar rested the defendant for D UI and took him t o the jail. He added that the defendant was stag gering when wal king from the pat rol car to the jail.

Coffee County Jai ler Charl ey Jones testified that he g ave the defendant a breath test and t hat the defendant reg istered .13. Mr. Jones ex plained the proc edures that he follow ed, and the defendant repl ied “no” w hen Mr. Jones asked if there was any foreign matter in the def endant’s mouth. Mr. Jones ackn owledged that he was unaware that the defendant had dentures with a cotton pad base.

The defendant testified that he had been to the Last Chance Saloon w ith two w omen. H e said that heconsum ed part of a hal f-pint

of Lord Calbe rt over some four and one-half hours before they le ft. He said that the car w as owned by one of the women, but he dr

ove because s he was si ck. He sai d that the car weaved because on e of the women was hollerin g. He ex plained that he w as polite and courteous to Trooper Kelsey and t hat he performed threefield sobriety tests. He de nied being under the influence of alcohol and stated that any difficulties he h ad with the field test rel ated to his physi cal problems.

Susan Lynn Gibson testified that she saw the defenda nt at the Last Chance Saloon and t hat he did not appear to her to be i ntoxicated. She said that he
was w ith two w

omen and that when one got sick , the defendant offered to dri ve the woman home. Ms . Gibson said that the defendant followed when she l eft the establishment.

I4 The defendant contends that t he evidence w as insufficient to prove that he was under

the influence of alco hol, primari ly indicating that thebreath test result was unreliable. This issue is without mer it.
On appeal, the state is entitl ed to the strong est legiti mate view of the evidence and a ll reasonabl e inferences w hich may be dr awn therefrom. Stat e v. Cabbage , 571 S.W .2d 832, 835 (Tenn . 1978). W hen the suff iciency of the evidence is challenged, the relevan t question for an appellate cour t is whet her, after vi ewing t he evidence in the light most favorable to the p rosecution, any rational trier of fa ct could have found the essen tial elements o f the crime beyond a reasonable do ubt. Jack son v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2791, 2782 (1979).

The defendant was seen drivingin an errati c manner wi th the odor of alcohol on his

breath. He had trouble maintai ning his bal ance, and he could not perform properly

on sobriety

tests. Hi s eyes were bloodshot, an d he admitted that he drank alcohol prior to hi s arrest. Trooper Kelsey ’s testimony reflects that hewas of the opinion that the d efendant was under the influence. H is testimony , alone, support s the jury verdict. Obviously, the breath test result was additional evidence of the def endant’s intoxicat ion.
We note that the defendant made clear to the j ury that he had dentures when he took the breath test, tha t his dentures contained a cot ton pad, and that th is could have affected t he test resul t. Further, the defendant testified t o his phys ical conditions which he claimed aff ected his performan ce on the sobriety tests. He also explained to

the jury that his car

weaved because of one of the gi rls’ acti ons. Obviously , the jury

was not convinced by

his evi dence. In this respect, the weight and credibili ty of the w itness’ test imony are matt ers entrusted exclusiv ely to the j ury as the1 In Stat e v. Bobo , 909 S. W .2d 788, 790 (Tenn. 1995), our supr eme court stat ed the Sensing requi rements as fol lows:

First, the testing ope rator m ust testify th at t he testused fol lowed Tennessee Bureau of Invest igat ion standar ds. Second, the op erat or must be cert if ied i n accordance wi th t hose standar ds. Third, the machine must be cert if ied, test ed reg ula rly fo r ac cu ra cy, and worki ng proper ly . Four th, the motoristm ust b e pe rso nally obs erve d for the re quis ite minutes bef ore t aking the test . Fi fth, the oper atormust foll ow the i nstru ment’s prescr ibed operat ional procedur e. Las tly, th e op erato r m ust ide ntify the tes t resu lts offe red in evide nce . 5 trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984). The ev idence was sufficient to conv ict the defendant.

II

Next, the de fendant contends that the trial cour t erred in admi tting the breath test re sult into ev idence. Fir st, he complains

about the trial court’s findi ng that his objectio n to the result was waived. Second, he asserts that his dentures constituted foreign matter in his mouth that would bar the admission of the test result as unreliable under State v. Sens ing , 843 S.W .2d 412 (Tenn. 199 2). W e agree with the defendant’s first complaint , but not the seco nd, give n the circumst ances of this cas e.

When the state called Charley Jones as a w itness about the breath test, the defendant request ed a jury- out hearing for the purpose of contesting the admissibili ty of the test r esult because th e test was taken wit h the defendant havi ng dentures. The defendant bas ed his objecti on upon Sensing , in w hich o ur sup reme court address ed the foundation req uirements 1 that a party must establish to admit breath test results obtained from an Intoximeter 300 0 instrument, the one u sed in this case. One of the requirements i s that the testi ng officer must be a ble to testify that the test subject was observed for twenty minutes befo re the test, and that during this period, he did not have foreign ma tter in his mouth, did not consu me any alcoholic beverage, smoke or reg urgitate. 843 S.W.2d at 416.6 At the eviden tiary hear ing, the fact th at the defendant had dentures was first discl osed. Mr. J ones testified that Trooper Kelsey , then he, observ ed the defendant and that the defendant had not been sick, had anything to drink, or anything else. He t estifi ed that upon be ing questio ned, th e defe ndant denied having any f oreign matter in his mouth. Mr. Jon es acknowl edged that he was unaware of the defendant having den tures wi th a cotton pad, but that if he had know n, he would have had the def end ant r emo ve the m. T he tr ial co urt ru led t hat t he de fen dan t was re quire d to h ave filed a pretri al motion to suppr ess on the iss ue. Also, it noted its beli ef that the defendant’s claim went to the wei ght of the evi dence, not its a dmissibili ty.

A The defendant contends that he was not obl igated to filea pretrial motion to suppress to raise the is sue of the test res ult being i nadmissible because the state failed to follow

the Sensing requirement s. He asser ts that he did not hing more than to contest the admis sibility of evidence as would any midtrial obj ection. In response, the state notes that the de fendant was moving to exclude the test result. It relies upo n Rule 12(b)(3) and (f), Tenn. R. Crim. P., which require that a mo tion to suppress evidence must be filed before tr ial and that a fail ure to file a moti on timely constitutes a waiver.

The purpose of this rule is not only to av

oid the unnecessary int err upti on an d in eff ic iency in conducting jury trials caus ed by needlessly removing the jury

from the courtroom for protracted s uppression hear ings, but al so to ensure the right of the state to an appeal of an adverse r uling bythe trial judge without placi ng the d efendant twice in jeopardy. State v. Ra ndolph , 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985).

In support of the stat e’s position, we note that this court has previously indicated that a

defendant’s failure to file a motion to suppress timel y relati ve to an attempt to excl ude a blood-alcohol test const itutes a waiver. See , e.g. , State v. Br aden , 874 S.W.2d 624, 625 (Tenn. Crim. App. 1993). How ever, upon furt her consideration,7

we believe that Rule 12(b)(3), Tenn. R. Crim. P., regarding motions to supp ress evidence was not meant to apply to an issue relating to w hether a sufficient foundat ion has been laid for t he admission of sci entific test r esults into ev idence.
The Advisory Commission Comments to Rule 12 state that our rule conforms to its feder

al counterpart . Given t his, we note that in Unit ed St ates v. Barletta , 644 F.2 d 50, 54 (1st Cir. 19 81), the First Circuit stated the fo llowing:

At least as used in 12(b), “suppress” has a rather definiteand limited meaning, as ex plained by t he A dvisor y Committee notes accompanyingthe Rule. M otions to suppre ss are described as "objections to evidence on the ground that it was illegally obtained," including "evidence obtained as a result of an illegal search" and "other forms of illegality such as the use of unconstitutio nal means to obtain a confession." A dv isory Committee notes, Federal Rule Criminal Procedure 12(b )(3), foll. 1 8 U .S.C.A., citing3 C. Wright, Federal Practice & Procedure: Criminal § 673 (196 0). Put ge nerall y, then, suppr ession motions concer n the "applicati on of the exclusionaryrule of evidence," or m at ters of "'police conduct not immediately

relevant to the question of guilt'", id ., quoting Jones v. Unit ed States , 362 U.S. 257, 264, 80 S. Ct. 725, 732 4 L.Ed. 2d 697 (1960)

. . . . In other wo rds, a motion to suppress is

contemplated to deal with the issue of excl uding “illegally obtained” evidence. In fact, the Ohio Supre me Court has followed this rationale to r

equire a pretrial motion to suppress i n order to cont est the admissi bility of alcohol breath test results relative to foundational req uirements. In Ohio v. French , 650 N.E.2d 887, 89 1-92 ( Ohio 19 95), t he cour t noted that t he test ing requir ements came from the Department of H ealth administr ative reg ulations and con cluded that a moti on to suppress s hould be used to addr ess evidenc e that is “i llegally obtained” w hether by violatio n of constitutional or statutory provisi ons. See also State v. Kirn , 767 P.2d 1238, 1239-40 (Haw . 1989) (for in terlocutory appeal purposes, the state may appeal the pretrial s uppression of breath test resul ts deemed obtained i n violati on of an administrati ve rule) . However, we do n ot believe that such reaso ning applies under Tennessee law.2 W e note t hat t he issue of t he admissibi li ty of t he breat h testresul ts i n Sensing arose by the d efe nda nt’s m idtrial obje ction a nd w as re solve d thro ugh a jury-o ut he aring

. See St at e v . James D. Sensing , No . 01-C -01- 900 7-C C-0 018 0, D icks on C oun ty (Te nn. C rim . App . Apr. 4 , 199 1), af f’d 843 S.W .2d 412 (T enn. 1992). 8

Although a trial court is not barred from ad dressing admissibility of test results by

a pretrial motion under cer tain circumstances, we believe that matters of evidentiar

y foundations, hi storicall y rooted i n the concerns for the reliabi lity and, therefore, the rel evancy o f evidence submi tted to the jur y, are ty pically

assessed at tr ial and remain the bur

den of the offering part y. In thi s sense, it i s an altogethe r different procedure that d eals wit h whether a sufficient evi dentiary foundati on exists to allow expert or scientific ev idence to be used. Our rules of evidence con template that midtr ial determinations o f such admissibi lity i ssues wi ll occur. See , e.g. , Tenn. R. Evi d. 104.

Scientific test results and the ir interpretations presented by an expert witness are admissibl e only upon a threshold show ing of certai n existi ng circumstances. Given the fact that this foundation laying is a prereq uisite to admis sibility , the burden falls upon the part

y seeking to introduce s cientific test results to prove that t he prerequis ites are met. See Neil P. C ohen et al., Tennessee Law of Evidence , § 702.4, at 464-66 (3d ed. 1995 ). Absent the prerequisites being proven to exist, the evidence is inadmissible. Also, that treatise sta tes that if a contest of the qualifications is desired, it is preferable for

the opponent to req uest a jury -out hearing to allow counsel to pr

obe "the witnes s's exper

tise by as king about thewitness 's backgr ound and about the scientific bas is for the tests and the instru ments used in the t ests." Id . at 465; see also Tenn. R. Evi d. 104(c) ( dealing w ith jury -out hearing s for prelimi nary matter s relating to admissibili ty). We believe that the record i n the present cas e reflects that t he defendant sought nothi ng more than to invoke thi s procedure. 2

In sp ecif ic ter ms of the a dmis sibil ity of brea th te st res ults in ord er to prove the alcohol cont ent in the blood, Tennessee previ ously req uired the part y seeking to admit the resul ts to show that (1) the test instrument used was capable of measuring or9

calculating data being used by the interpreting expert and was based up on scientific principles

accepted by the scientific community, ( 2) the instr ument was functi oning prop erly an d was u sed p rope rly at t he ti me o f th e tes t, (3 ) the test was con duct ed by a pers on qu alif ied t o adm inist er it, and ( 4) th e int erpr etat ion o f th e tes t resu lts m ust h ave been by a qu alified person, including the person hav ing an understanding of both the scientific pr inciples behi nd and the operativ e functions of the test. See Pruitt v . State , 216 Tenn. 686, 393 S.W.2d 747 (1965); Fortune v. State , 197 Tenn. 691, 277 S.W.2d 381 (1955); Tenn. R . Evid. 702; Cohen, supra §§ 401.17--401.20, 401.22, 702.2-- 702.4. Althoug h in Sensing our supreme cour t relaxed the evidenti ary foundation needed for admission of breath test res ults obtained from a n Intoximeter 3000, it did not alter the burd en for establishi ng that foundation.

As our supreme court stated in State v. Bobo , the Sensing requirement s are “prereq uisites for thr eshold admissi bility of breath alcohol t est results .” 909 S.W.2d at 790. As such, the proponent of the ev idence, in thi s case the stat e, has the burden of laying sufficient foundation to al low the admi ssion of the breath test result s. If the foundation is not proven, the evidence may be excluded upon obje ction. In fact, this court has alr

eady so held. See State v. Ha rold E. Fie lds , No. 01C01-941 2-CC-00438, W illiamson County (Tenn. Crim. App. Apr. 12 , 1996).

Therefore, the fact that t he defendant raised thethreshold admis sibility issue midtri al did not cons titute a w aiver of that issue. Nor did the fact that he proceeded by motion at the beg inning of Mr . Jones’ appearance as a wi tness -- as opposed to objecti ng during Mr. Jones’ testimony - - change the nature of the inq uiry or the state’s bur

den to establis h a proper foundation. However, this does not mean that the state failed to meet its burden i n this case.10 B The defendant contends that t he fact that he was tested w ith his dentures renders the test result inadmissible be cause the dentures were a foreign subst ance in his mouth. He no tes that Mr. Jones testified that if he had know n of the dentures, he would have had them removed. Obviously, the requirement that no foreign matter be in the mouth is inte nded to insure t hat the breath that the defendant blows into the Intoximeter 3000 is not tain ted by some sub stance that mig ht alter, by alcohol rete ntion or otherw ise, the inst rument’s readi ng of the defendant’s deeplung air sample. Howeve r, we bel ieve that th e circumstanc es in the pres ent case did not call for the exclusio n of the breath test results.

Initially , we note that

some jurisdi ctions have been unwil ling to co nsider false teeth to be forei gn matter that should bar admis sion of test res ults. See Peop le v. Witt , 630 N.E.2d 156 ( Ill. App. Ct . 1994); State v. Al len , 702 P.2d 1118 (Or. App. 19 84);
see also City of Sunny

side v. F ernandez , 799 P.2d 753, 755 (Wash. App. 1990) (administrat ive reg ulation exc ludes “dental work” from “foreign su bstances” re lative to breath test pr

ocedures). We are incli ned to agree relative to the threshold admissibili ty prerequis ites. However, w hether we v iew dentures to be foreig n matter is not dispositive in this cas e.

The defendant was obser ved for the re quired ti me and nothing unus ual
was seen. He denied hav ing any foreign matter in his mouth. The r ecord reflects

that the fact that he wore dentures was not even di sclosed to hi s counsel unti l the time of trial. Al so, the defendant stip ulated to Mr. Jones’ qual ifications and t o the Intoxi meter being certified to be fun ctioning properly several months before and weeks after his arrest. Fi nally, as

a matter of omissi on, there is no evidence i n the record t hat tells us what effect, if any , dentures coul d potentially have on the test result.11 The subject of a test should not be all owed to w ithhold a fact re levant to the t est p roce dure s as re quire d by Sensing and then seek exclusion of the test results on the ground t hat the procedures used were incomplete becaus e of the withhel d fact. In this case, if the dentures were considered foreign matter , Mr. Jones was entitl ed to rely upon t he defendant’s answer that no foreig n matter was present. Thus, e ither way that the dentures are viewed, the state was entitled to introduce the breath test resu lt into evidence.

In this respe ct, we bel ieve it t o be significant that Sensing requires the subject to be observed for twenty minutes and does not

otherwis e require a physical probe of the mouth or i nterrogati on of the subject about his or her mouth contents. Obviously , given the fact that a defendant may attack the validity of the test resul ts before the jury, it might be advisable, as a practical ma tter, for the test operato r to ask the subject about dentures. We do not, though, bel ieve it t o be a prereq uisite to admissibili ty.

III

Finally , the defendant contends t hat he was ent itled to the j ury being instructed th at the breath tes t result coul d not be considered until the j ury determi ned that the preli minary facts had been proven. We disagree. As we previousl y noted, the Sensing requirement s are prereq uisites for thetest result to be admitted int o evidence. As such, the tr ial court - - not the jur y -- has the duty to d etermine whe ther a proper foundation has been prov en in order to

allow t he test resul t into evi dence.

Once the trial court has deter mined threshold admissibili ty, the submission of the br

eath test resul t into evi dence is uncondi tional. The jur y, as the tr ier of fact, has the rig ht to consider all of the ev idence presented and to determine i ts relative worth. As Sensing indicates, the admission of the test result does not fo reclose12

the defense f rom calling the result into question befo re the jury, whether by crossexamination, presentation of w itnesses, or jury argument. 843 S.W.2d at 416. Howeve r, whether

the jury disregar ds the test res ult is a deci sion left to it as the trier of fact. There is no b ar to the jur y’s cons ideration of the te st result once it is admit ted into evidence. Thus , the defendant’s req uested jury instructi on was an i ncorrect st atement of the law, and the trial court properl y reject ed it. See State v. Moore , 751 S.W.2d 464, 466-67 (Tenn. Cr im. App. 1988).

In considerati on of the foregoing , and the recor d as a whol e, the judgment of convictio n is affirmed.

________________________________ Joseph M. Tipto n, Judge CONCUR:
(See separate concurring & dissentingopinion) Paul G. S umme rs, Judge

___________________________ W illiam M. B arker, Ju dge