### FILED August 17, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9810-CR-00370 Appellee, ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, DANNY RA

Y DAVIS, ) JUDGE ) Appellant. ) (Driving Under the Influence)

FOR THE APPE LLANT: FOR THE APPELLEE: JOHNNY D. HOUSTON, JR. PAUL G. SUMMERS Flatiron Bldg., Suite 402 Attorney General & Repor ter 707 Georgia Ave. Chattanooga, TN 37402-2048 ERI K W. DAAB Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM H. COX District Attorney General PARKE MA

STERSON Asst. District Attor

ney General 600 Market St. Chattanooga, TN 37402

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

A jury convicted the defendant of driving under the in fluence (DUI), third offense, and the defendant received an elev en month, twenty-ni n e day workhouse sentence. He now appeals, argui ng that the jury’s verdict is contrary to the wei ght of the evidence and that the trial court denied his due proce ss righ ts by not allowing him to recall a State witness. Findi ng no merit to the defendant’s arg umen ts, we aff irm his conviction.

At trial, the State presented two witnesses, Offic er Ezra Harris, the investigating

police officer, and Denise Law son, a paramedic. Officer Harris testified he responded to a dispatch of a motor vehicl e accident in the early morning hours of September

21, 1996. He testified that w hen he arrived at the sc ene, he saw a Toyota Corolla registered in the defendant’s name that had crashed head-on into a tree. According to Officer Harris, the windshield in front of the driver’s seat was stained wi th blood and looked as if a person’s head had smashed against it. Officer Harris testified that no individuals were at the scene, bu t he locat ed the de fendan t and his b rother-in -law, James Carney, at a nearby h ouse. According to Officer Harris, the defendant admitted he was dr iving, and both he and Car ney denied that anyone else was involved i n the accident. Upon Officer Harris’ request, the defendant gave him the car keys.

A photograph of the defendant taken shortly after the acc ident reflects cuts and wounds to his forehead and nose, and Officer Harris testified that the defendant had blood on his face. According to Officer Harris, however, the defendant refused medical treatment. Because the defendant smelled of alcohol, Officer Harris arrested him for DUI. In Officer Harris’ opinion,the defendant was too intoxicated to driv

e, and a later breath test r eveal ed a blood alcohol content of .19%. On cross-examination, Officer Harris testified that he had been trained to determine from a sea t belt’s appearance whether it3

had been used during an accident and that in this case, it did not appear the defendant
was wearing his seatbel t. Off icer Harris testified that even so, the defendant did not appear to have any chest injuries caused by hitting the steering wheel.

Denise Lawson, a paramedic, testi fied that she responded to the accident
scene. She testified that both the defenda nt and Carney cl aimed th ey were the only individuals involved in the accident, but both also denied driving. Accord ing to Lawson, the defendant indicated to her he had been drin kin g. Lawson confirmed that the defendant refused medical treatm ent, but from talking with him, it did not appear to her that he had any chest injur ies. She also testified, however, that it was not unusual for drunk drivers to escape injury in an accident because “their response is a little sl ower and they don’t tend to brace themsel ves for the accident.”

Several defense witnesses testified tha t during the hours prior to the accident, the defe ndant had spent time with a fri end, Steve Webb. The defendant testified that Webb had been driving him and Carney from a Krystal fast-food restaurant when they crashed. Accordi ng to the defendant, he was sleeping in the back seat and Carney was ridi ng in the front passenger seat at the time of the crash. He testi fied that because of a head injury, he did not r emember any

o f the events surrounding the accident, but he wascertain that Webb was driving . He also claimednot to have had the
car keys. He admitted

drinking approximately fourteen beers in the hours preceding th e cras h. Carney’s testimony substantially corrob orated the defendant’s, in that Car ney testified that Webb was driving, that the defenda nt was in the backseat, and that he was in the front passenger seat. According to Carney, the im pa ct hurled the defendant forward, causing the defendant t o land on top of him in the front passeng er seat.

The defendant

argues that bec

ause the

weight of t he e vidence preponderatesagainst the jury’s verdict, this Court should reverse his conviction. While4

a trial court has the authority to reverse a jury’s verdict when it determines that the verdict is contrary to the wei ght of the evidence, see Tenn. R. Cri m. P. 33(f), this Court may not reweigh the evidence on appeal, see, e.g. , State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Thus, to the extent the defendant arguesthe jury’s verdict is against the weight of the evidence, his argument must fail.

While a defendant may not challenge on appeal the weight of the convicting evidence, he or she may challenge the sufficiency of the convicting evidence. To the extentthat the defendant’s argument may be construed as a challen ge to the sufficiency of the evidence, his argument still fails. The record r eflects that the defendant admitted drivingon a publi c road af ter drinki ng approxi m ately fourteen beers. Althoug h the defense presented evidence that the de fendant was not driving at the time of the accident, the jurywas within its province to disregar d that evidence in favor of the State’s evidence that the defendant was driv ing. See Cabbage , 571 S.W.2d 832, 835. In short, the evidence, construed in the light most favorable to the State, would allow any rational trier of fact to find the essential element s of DUI beyond a reasonable doubt

. See Jackson v. Virginia , 443 U.S. 307, 319 (1979).

The defendant also argues that the trial court denied his due process rights bynot allowing him to recall Officer Harri s to the stand in order to att empt to impeach him. According to the defendant, Officer Harris’ testimony was key to his conv iction and if he had been allowed to

attempt to impea ch his cred ibility, the jury w ould have ac

quitted him

.
On cross-examination, Officer H ar ris testified that he had taken photographsof the Corolla at the crime scene, but

that they were of poor q uality and that he did not bring them to tri al. Defense counsel began to q ues ti on Officer Harris using photographstaken by the defendant, but Officer Har ris could not positiv

ely identify the
car in the photographs. The State objected to defe nse counsel’s questioning unless the5

photographscould b e pr operly authenticated, and the trial court conducted a ju ry-out hearing to determine whether Officer Harris could authenticate the photographs. When Officer Harris could not recog nize the car in the phot ogra phs as the defendant’s car, defense counsel requested that Officer Harris retrieve his photographs, even though he admittedly did not subpoena them. Defense counsel a rgued tha t the Sta te should have supplied him with the photogr aphs pursuant to his reques t for discovery, but the State insisted it ope ned its file to defense counsel and defense counsel had access to everything

it had. Officer Harris again stated that the pi ctures were “very poor qu ality” because dim lightin g prevented anything from bei ng recognizable. Defense counsel maintained that even so, he wanted to see the pictures. The trial court ruled that defense counsel could have access to the photographs after trial.

Later, after several defense witnesses, defense counsel attempted to recall Officer Harris to the stand . Defense co unsel represented to the tri al court that he had been reviewing the

accident report and noticed that on the report, Off icer Harris indicated he did not ta ke any p hotographs o f the scene. Defense counsel stated he wanted to recall Officer

Harris for the sole purpo se of attempting to impeach his prior testi mony that he did t ake photographs. The trial court denied defense co unsel’s request to recall Officer Harris, stating that he had had his opportunity to cross-examine him. Therecord shows that defense counsel had the accident r eport in his possession when he crossexamined Officer Harris and in fact had a ttempted to impeach his trial testimony on other grounds by using the accident report.

The decision to allow the recall of a witness rests within the trial co urt’ s discretion. See State v. Caughron , 855 S.W.2d 526, 539 (Tenn. 1993). Here, the only
reason de fense counsel wished to rec all Officer Harris w

as to attempt to impeach hi s previoustestimony by using the accident report. As the defendant admits, however, the defense had a copy

of the accident report during Officer Harris’ testimony and defe nse6

counsel even attempte d to impeach hi s testimony in oth er regards using the accide nt rep ort. Thus, because defense counsel had ample oppo rtunity to attempt to impeach Officer Harris during cross-examination, the trial court d id not abuse its discreti on by not allowing the defendant to recall Officer Harris.

Even assum ing the trial court abused its discretion, any resulting error is harmless. During the hearing on the de fendant’s mo tion for new trial, Officer Harris testified he indicated on the accident report that

no photographs were tak en because he did not have any photographs “of substantial quality.” We must assume tha t if h e had been asked to explain to the jury the seeming dis crepanc y between his trial testimony and the accident report, Officer Harris would have replied similarly. Moreover, defense counsel cross-examined Officer Ha rris about other apparent di screpanciesbetween his trial testimony and what he r ecorded on the accident report. Specifically, Officer Harris testified dur ing trial that the car keys the defendant had giv en him were bent and tha t there had been blood on thecar windshield, but he did not note either of these details in the accident report because, as he maintained, he had noted only i mpo rt ant details on the accident report. Given that Officer Harr is had an explanation for indi cating on the accidentreport that no

photographs were taken and that defense counsel had attempted to impeach Office r Harris’ tri al testim ony on two other points by using the accident

report,
we cannot conclude that the jury’s verdict was affected by the trial court n ot allowing defense counsel to recall Officer H arris for the sole purpose o f attempting to impeach his credibility

further with the

accident report. See Tenn. R. Crim. P. 52(a) (error is harmless unless it affirmatively appears to have affected the resu lt of the trial on the merits).

The defendant also suggests that he was deprived of his due process rights when the St ate failed to produce Officer Harri s’ photographs despite his motion for discovery

requesting, inter

alia, photog raphs of the c rime scene. The defendant cl aims the photogr aphs “co uld have . . . shown Officer Harris to be untruthful” and “may well7

have shown” that the driver d id not hit the windshield as Officer H arris testified. The defendant fails to cite any authori ty supporting his pos ition, thus waivi ng this argument. R ules o f the Court of Criminal Appeals of Tennessee 10(b). Moreover,nothing in the record shows that

the photographs were ex culpatory or otherw

ise supports the notion that the S tate violated the rules o f discovery. Accor

dingly, this arg ument will not afford th e defendant

relief.
Finding no merit to the defendant’s argument s, the trial court’s judgment is affirmed.

_______________________________ JOHN H. PEAY, Judge CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ JOHN EVERETT W ILLIAMS, Judge