            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                  STATE OF TENNESSEE v. TERRY M. WATSON

                  Direct Appeal from the Circuit Court for Davidson County
                           No. 98-T-344    Frank Clement, Judge



                     No. M1999-00264-CCA-R3-CD - Decided June 23, 2000


A Davidson County jury convicted the appellant, Terry M. Watson, of driving under the influence
of an intoxicant, fifth offense. The trial court sentenced the appellant to eleven (11) months and
twenty-nine (29) days, suspended after service of 300 days in the county jail. On appeal, the
appellant contends that: (1) the trial court erred in admitting evidence at trial regarding his post-arrest
behavior; (2) the trial court erred in admitting evidence at trial that he failed to perform field sobriety
tests; (3) the evidence is insufficient to sustain his conviction for driving under the influence, fifth
offense; and (4) the trial court erred in failing to instruct the jury on circumstantial evidence during
the second phase of the bifurcated trial. After a thorough review of the record before this Court, we
conclude that the state did not agree to suppress testimony that the appellant stated the “same thing
over and over,” and because such testimony concerned the appellant’s behavior, the failure of the
police officer to advise the appellant of his Miranda rights did not render such testimony
inadmissible. Furthermore, in view of the overwhelming evidence of guilt, any error in the
admission of testimony regarding the appellant’s performance on field sobriety tests was harmless.
The evidence of guilt of fifth offense D.U.I is more than sufficient. Finally, we conclude that the
trial court did not commit plain error by failing to instruct the jury on circumstantial evidence in the
second phase of the bifurcated trial. Therefore, the judgment of the trial court is affirmed.



T.R.A.P. 3 Appeal as of Right; Judgment of the Circuit Court of Davidson County is Affirmed

SMITH, J., delivered the opinion of the court, in which WADE, P. J., and WEDEMEYER , J., joined.

C. Edward Fowlkes, Nashville, Tennessee attorney for the appellant, Terry M. Watson

Paul G. Summers, Attorney General & Reporter and Todd R. Kelley, Assistant Attorney General,
Nashville, Tennessee, attorneys for the appellee, State of Tennessee
                                              OPINION

                                                FACTS

         At approximately 2:00 a.m. on August 14, 1997, Metro Police Officer James Curtis was
patrolling on Dickerson Road when he noticed a vehicle driving below the speed limit. Additionally,
Officer Curtis testified at trial that the vehicle was “weaving all over the road.” Curtis ran a check
of the vehicle’s license plates, and when he was informed that the plates were registered to a
different vehicle, he activated his emergency lights. The vehicle, however, continued traveling, so
the officer activated his siren. The car traveled for approximately one (1) mile before pulling over
to the side of the road.
         The officer got out of his vehicle and approached the other vehicle on the driver’s side, where
he observed the appellant “stooped” behind the wheel in the driver’s seat. A passenger was also
present in the vehicle. The appellant did not appear to be alert to his surroundings, and when Officer
Curtis asked to see his driver’s license, the appellant fumbled through his wallet, but could not
produce a license. The officer observed a partially full twelve-pack of beer in the passenger area of
the car, as well as two opened, partially consumed, cold containers of beer. In addition, the officer
noticed an odor of alcohol about the appellant.
         Officer Curtis asked the appellant to step out of the vehicle, and as he exited the vehicle, the
appellant was unsteady on his feet. The officer testified that the appellant “kind of used the car as
a rail to kind of guide him back to the rear of his car.” After the appellant stepped from the vehicle
and walked to the back of his vehicle, the odor of alcohol became more intense. Curtis then asked
the appellant to take a field sobriety test, to which the appellant agreed.
         The appellant started to perform the “one-leg stand,” but when he lifted his leg, the appellant
began to fall over into the roadway. Officer Curtis grabbed him so that he would not fall, and when
the appellant attempted to perform the test a second time, he stumbled again. The officer asked the
appellant to perform a different task, but the appellant refused to take any further field sobriety tests.
Officer Curtis then placed the appellant under arrest for driving under the influence and transported
him to the police station. Once they arrived, the officer contacted another officer to administer a
breath alcohol test. However, after reading the implied consent form to the appellant, the appellant
refused to take the breath alcohol test.
         Officer Henry Perry was called to administer the appellant’s breath alcohol test on August
14. Perry testified that the appellant’s eyes were bloodshot and watery, he smelled strongly of
alcohol, his speech was slurred, and he stated the same thing “over and over.” After observing the
appellant for some time, Officer Perry concluded that the appellant was under the influence of
alcohol.
         The appellant testified on his own behalf at trial. He stated that, on the evening before his
arrest, he played cards with some friends. He testified that he was not drinking alcohol on that night,
“just Pepsi Colas.” When they finished playing cards around midnight, the appellant agreed to give
Raymond Butler and Terrell Brown a ride. The appellant drove Butler to a “beer joint,” and on the
way, Butler purchased a twelve-pack of beer, which he left in the appellant’s vehicle. The appellant
testified that Officer Curtis stopped his vehicle as he was driving back home.
         The appellant denied being under the influence when he was arrested. He testified that he


                                                   -2-
could not drink alcoholic beverages because of his health and that he had not drank alcohol in
approximately three and one-half (3 ½) years. The appellant stated that he requested a blood alcohol
test prior to his arrest, but the officer ignored him. After he was arrested, however, he did not want
to be tested. The appellant claimed that the officer’s testimony regarding his intoxication was
erroneous and stated that the officer was “mistaking [his] case with somebody else’s.”
         Two friends who played cards with the appellant on the evening prior to his arrest confirmed
the appellant’s testimony that he was not drinking alcoholic beverages on that evening. However,
neither saw the appellant after the card game concluded approximately two (2) hours prior to his
arrest. Neither could testify whether the appellant was intoxicated when he was arrested.1
Additionally, Donny Osborne, an acquaintance of the appellant, testified for the defense at trial.
Osborne stated that, in the approximately three (3) years that he had known the appellant, he had
never seen, nor heard of, the appellant consuming alcoholic beverages.
         The jury found the appellant guilty of driving under the influence of an intoxicant. In the
second phase of the bifurcated proceeding, the state introduced certified copies of judgments which
showed that “Terry Watson” had two (2) prior convictions for driving under the influence in
Davidson County. The state also presented certified copies of court minutes which reflected that
“Terry M. Watson” had two (2) prior convictions for driving under the influence in Davidson
County. Thereafter, the jury convicted the appellant of driving under the influence, fifth offense.
         From his conviction, the appellant now brings this appeal as of right.

                                  POST-ARREST BEHAVIOR

        The appellant contends that the trial court erred in allowing the state to introduce testimony
from Officer Perry that the appellant was “saying the same thing over and over.” He claims that the
prosecution agreed that it would not introduce such testimony at a pretrial suppression hearing and
thereby acted in bad faith by making such a misrepresentation to the trial court and to defense
counsel. He further asserts that the testimony was inadmissible in that the officer took the
“statement” from the appellant in the absence of Miranda warnings.
        Prior to trial, the appellant moved to suppress any statements made to law enforcement
officers following his arrest, and at a subsequent suppression hearing, the following exchange
occurred:
   GENERAL HAYCOX:                     Judge, we can deal with Mr.
                                Fowlkes’ case without hearing from
                                witnesses.

...

                               The only statements recorded in the
                               paperwork are statement[s] after arrest
                               without Miranda - -

       1
        Raymond Butler and Terrell Brown did not testify at trial. According to defense witnesses,
the whereabouts of both men are unknown.

                                                 -3-
  THE COURT:                             After [M]iranda?

 GENERAL HAYCOX:                       Without Miranda. So the State
                                will not be seeking to introduce that
                                statement that’s recorded in the
                                paperwork.

...

                                        Well, Judge, the statement
                                that’s recorded in the paperwork in
                                block 43, in the officer’s handwriting,
                                stated: Dear [sic] (1) bush. And the
                                state will not be seeking to introduce
                                that sentence.

  THE COURT:                             We’ll suppress that.

“Block 43” referred to a particular slot on the police report wherein Officer Perry wrote his
observations regarding the appellant’s demeanor following his arrest. The entire contents of “block
43” read as follows: “stated: Beer (1) Bushe [sic] Brand w/ strong smell of alcohol about his present
[sic], talkative, said the same thing over and over, bloodshot eyes, slurred speech, in bad shape.”
At trial, although the state did not attempt to introduce the contents of the appellant’s statement to
the police, Officer Perry testified that, while he observed the appellant following his arrest, the
appellant stated “the same thing over and over.”
          The appellant argues that the prosecution agreed not to introduce the contents of “block 43”
at trial; therefore, he maintains that the state acted in bad faith by introducing testimony that he stated
“the same thing over and over” following his arrest. However, a reading of the suppression hearing
shows that the state merely agreed not to introduce the statement made by the appellant, i.e., “Beer
(1) Bushe [sic] Brand.” Contrary to the appellant’s argument, there is nothing in the record to
indicate any agreement by the state to suppress the entire contents of “box 43.” Thus, the
prosecution did not act in bad faith by eliciting testimony from Officer Perry that the appellant was
“saying the same thing over and over.”
          The appellant further insists that the officer’s testimony that he said “the same thing over and
over” constituted a “statement” by the appellant. He claims that, because the officer elicited such
a “statement” from the appellant without advising him of his Miranda rights, the officer’s testimony
should have been suppressed at trial.
          In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966),
the United States Supreme Court ruled that the Fifth and Fourteenth Amendments’ prohibition
against compelled self-incrimination requires police officers, before initiating questioning, to advise
a suspect of his right to remain silent and his right to counsel. If the officers fail to advise an accused
of his or her Miranda warnings, any incriminating statements made will be inadmissible at trial. Id.
 The United States Supreme Court has construed the Fifth Amendment to only prohibit statements


                                                   -4-
of a “testimonial” or “communicative” nature, Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct.
1826, 1832, 16 L.Ed.2d 908 (1966), and our Supreme Court has adopted a similar view with regard
to Article I, Section 9 of the Tennessee Constitution. State v. Frasier, 914 S.W.2d 467, 472-73
(Tenn. 1996).
        In the present case, the incriminating statement made by the appellant, i.e., “Beer (1) Bushe
[sic] Brand” was suppressed at trial. However, the appellant contends that evidence of him repeating
a statement “over and over” was incriminating and “testimonial in nature.” We disagree. By
introducing evidence that the appellant repeated a sentence “over and over,” the state was merely
introducing evidence of the appellant’s behavior. Such evidence is much like the officer’s testimony
that the appellant fumbled through his wallet and was unsteady on his feet when he exited the
vehicle. The appellant’s conduct, although arguably incriminating, was not “testimonial in nature,”
and as a result, the officer’s testimony regarding the appellant’s conduct was properly admissible at
trial.
        This issue has no merit.

                                   FIELD SOBRIETY TESTS

         In his next issue, the appellant argues that the trial court erred in allowing the state to
introduce testimony regarding his performance on field sobriety tests prior to his arrest. He contends
that, at a pretrial suppression hearing, the state stipulated that it would not be introducing evidence
regarding any field sobriety tests performed by the appellant prior to his arrest. Thus, the appellant
asserts that his due process rights were violated when the state introduced such evidence at trial.
         At the pretrial suppression hearing, the appellant asked the trial court to determine the
admissibility of the field sobriety tests Officer Curtis requested that he perform prior to his arrest.
At the onset of the proceedings, the following transpired:
   GENERAL HAYCOX:                       Judge, we can deal with Mr.
                                 Fowlkes’ case without hearing from
                                 witnesses. He filed some motions,
                                 one of which would be to suppress the
                                 HGN, which you’ll grant.

  THE COURT:                         I will grant the motion to
                               suppress the horizontal [gaze
                               nystagmus] tasks.

  GENERAL HAYCOX:                      Technically, he challenge [sic]
                               the field sobriety test, but the only
                               field sobriety test was the HGN. So,
                               then, they should strike that.

  THE COURT:                           Yeah, I can’t grant something
                               in blank, but I’ll certainly suppress the
                               HGN.


                                                 -5-
         Just prior to jury selection in this case, defense counsel sought to clarify the state’s intention
regarding the admissibility of any field sobriety tests. The prosecutor stated that he anticipated
Officer Curtis would testify that he attempted to administer the “one-leg stand,” but that the appellant
was too intoxicated to perform the test. He further stated that Officer Curtis would testify that, when
asked to perform the “walk-and-turn” test, the appellant refused. Defense counsel objected to such
testimony on the basis that the state previously agreed that no evidence concerning field sobriety
tests would be introduced at trial. The trial court found that, when the prosecutor stated at the
pretrial hearing that there were no other field sobriety tests, he meant that no other field sobriety tests
were completed. Accordingly, the court concluded that the state did not agree to suppress all
evidence regarding the field sobriety tests. Additionally, the trial court determined that the appellant
was not prejudiced because he had knowledge of the police report wherein the officer indicated that
the appellant was too intoxicated to perform the “one-leg stand” and refused to perform the “walk-
and-turn” test. Officer Curtis was subsequently allowed to testify regarding the inability of the
appellant to perform field sobriety tests.
         The appellant contends that, by announcing to the trial court that there were no other field
sobriety tests, the prosecution, in effect, stipulated that no evidence regarding field sobriety tests
would be introduced. Initially, although we agree with the trial court that the appellant had
knowledge that the officer attempted to administer other field sobriety tests due to the notations on
the police report, the prosecutor’s statement, “the only field sobriety test was the HGN,” implies that
no other field tests were administered.
         In any event, after thoroughly reviewing the record, it is apparent that this situation arose out
of a complete misunderstanding among the prosecutors, defense counsel and the trial court, and we
will treat it as such. There is no indication that the prosecution intentionally misrepresented its
position to defense counsel and the trial court, and absent evidence to the contrary, this Court will
not assume bad faith.
         In any event, any error in the admission of this testimony was clearly harmless. Even in the
absence of Officer Curtis’ testimony regarding the field sobriety tests, the evidence against the
appellant was overwhelming. Officer Curtis stopped the appellant’s vehicle after observing him
driving in an erratic manner. When Officer Curtis approached the vehicle, the appellant smelled
strongly of alcohol, and a partially full twelve-pack of beer was inside the vehicle. The officer
noticed two cold, partially-consumed containers of beer in the vehicle, as well. When the appellant
exited his vehicle, he was unsteady on his feet, and the officer testified that the appellant had to lean
on the vehicle while walking to the rear of the car. After the appellant was arrested, Officer Perry
observed the appellant’s demeanor for a period of time. Perry noticed that the appellant’s eyes were
bloodshot and watery, he smelled of alcohol, and he stated “the same thing over and over.” Both
officers opined that the appellant was under the influence of alcohol. The testimony regarding the
field sobriety tests does not “affirmatively appear to have affected the result of the trial on the
merits”; therefore, we conclude that any error in the admission of such testimony was harmless.
Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).
         This issue is without merit.



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                              SUFFICIENCY OF THE EVIDENCE

         The appellant contends that the evidence presented at trial was insufficient to sustain his
conviction for driving under the influence, fifth offense. First, he argues that a rational trier of fact
could not convict him based upon Officer Curtis’ testimony because it was inaccurate. Secondly,
he claims that the state failed to present sufficient proof of identity to support the jury’s finding that
he had four (4) prior convictions for driving under the influence.
         When an appellant challenges the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the
state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992).
         On appeal, the state is entitled to the strongest legitimate view of the evidence and all
legitimate or reasonable inferences which may be drawn therefrom. State v. Bigbee, 885 S.W.2d at
803; State v. Harris, 839 S.W.2d at 75. This Court will not disturb a verdict of guilt due to the
sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record
and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational
trier of fact to find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1,
19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm the conviction
if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have
found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); State
v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
         First, the appellant alleges that a rational trier of fact could not have found him guilty based
upon the testimony of Officer Curtis. He claims that the officer was mistaken about the number of
traffic lanes on the roadway on which the appellant was stopped and, thus, argues that the officer’s
testimony was wholly incredible. Regardless, questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence,
are resolved by the trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987). Obviously, by convicting the appellant of driving under the influence, the jury chose
to accredit the officer’s testimony regarding his observations relative to the appellant’s intoxication.
This Court may not overturn a jury’s finding in this regard.
         As indicated earlier, the evidence against the appellant was overwhelming. The appellant’s
vehicle was weaving along the roadway, and when Officer Curtis stopped his vehicle and approached
the driver’s side, the appellant was “stooped” in the driver’s seat. The officer detected an odor of
alcohol and found a partially full twelve-pack of beer in the vehicle. He also observed two cold,
partially-consumed containers of beer in the vehicle. When the officer asked the appellant for a
driver’s license, the appellant fumbled through his wallet, but could not produce a license. The
appellant was unsteady on his feet when he exited the vehicle, and Officer Curtis testified that the
appellant “kind of used the car as a rail to kind of guide him back to the rear of his car.” In addition,
while observing the appellant, Officer Perry noticed that the appellant’s eyes were bloodshot and
watery, he smelled of alcohol, and he stated “the same thing over and over.” Each officer testified
that, in his opinion, the appellant was under the influence of alcohol. The evidence was sufficient
for a rational trier of fact to conclude that the appellant was driving under the influence of an


                                                   -7-
intoxicant.2
        The appellant also argues that the evidence is insufficient to sustain the jury’s finding of fifth
offense, driving under the influence. He asserts that, by merely introducing certified copies of
documents reflecting prior convictions for driving under the influence under the names “Terry
Watson” and “Terry M. Watson,” the state failed to present sufficient evidence of identity.
        In the second phase of the bifurcated trial, the prosecution introduced certified copies of
judgments which showed that “Terry Watson” had two (2) prior convictions for driving under the
influence in Davidson County. Both of these judgments indicated that “Terry Watson” had a birth
date of June 13, 1946. Further, the state presented certified copies of court minutes which reflected
that “Terry M. Watson” had two (2) prior convictions for driving under the influence in Davidson
County. No additional evidence was presented.
        A judgment establishing that the person arrested and ultimately convicted of an offense
shared the same name with the defendant on trial is prima facie evidence of identity. State v.
Cottrell, 868 S.W.2d 673, 678 (Tenn. Crim. App. 1992); State v. Mark John Turner, C.C.A. No.
01C01-9703-CR-00071, 1999 Tenn. Crim App. LEXIS 584, at *3-4, Davidson County (Tenn. Crim.
App. filed June 16, 1999, at Nashville). A jury could properly infer that the appellant was the same
person as “Terry Watson” and “Terry M. Watson” who received the prior convictions for driving
under the influence. As a result, we conclude that the state presented sufficient evidence establishing
the appellant’s identity.
        This issue has no merit.




        2
            The relevant statute provides as follows:

        It is unlawful for any person to drive or to be in physical control of any automobile
        or other motor driven vehicle on any of the public roads and highways of the state,
        or on any streets or alleys, or while on the premises of any shopping center, trailer
        park or any apartment house complex, or any other premises which is generally
        frequented by the public at large, while:

                  (1) Under the influence of any intoxicant, marijuana, narcotic drug,
                  or drug producing stimulating effects on the central nervous system;
                  or


                  (2) The alcohol concentration in such person's blood or breath is
                  ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a).

                                                   -8-
                       CIRCUMSTANTIAL EVIDENCE JURY CHARGE

         In his final issue on appeal, the appellant contends that the trial court committed plain error
in failing to charge the jury on circumstantial evidence during the second phase of the bifurcated
trial. He alleges that the evidence establishing his identity as the same “Terry Watson” who received
four (4) prior convictions for driving under the influence was entirely circumstantial. Thus, he
maintains that the trial court committed fundamental reversible error by failing to instruct the jury
regarding circumstantial evidence.
         First, we note, and the appellant apparently concedes, that he has waived this issue for failing
to request an instruction on circumstantial evidence at trial. State v. Brewer, 932 S.W.2d 1, 16
(Tenn. Crim. App. 1996). Moreover, the appellant failed to include this issue in the motion for new
trial and has waived the issue for this reason as well. Tenn. R. App. P. 3(e); State v. Howell, 868
S.W.2d 238, 255-56 (Tenn. 1993).
         The appellant urges this Court to find plain error in the trial court’s failure to instruct the jury
on circumstantial evidence. In support of his argument, the appellant cites State v. Thompson, 519
S.W.2d 789, 792 (Tenn. 1975), in which our Supreme Court reiterated the well-settled rule that
“when all the incriminating evidence against the accused in a criminal trial is circumstantial, the
failure of the judge to instruct the jury the law of circumstantial evidence, whether or not the
respondent requests such instructions, is fundamental reversible error.” See also State v. Caldwell,
671 S.W.2d 459, 465-66 (Tenn. 1984).
         “‘Circumstantial evidence’ differs from direct evidence, and consists of proof of collateral
facts and circumstances from which the existence of the main fact may be deduced according to
reason and common experience of mankind.” Webb v. State, 140 Tenn. 205, 203 S.W. 955 (1918).
“Direct evidence” is defined as “evidence which, if believed, proves the existence of the fact in issue
without inference or presumption, whereas circumstantial evidence, without going directly to prove
existence of a fact, gives rise to a logical inference that such a fact exists.” State v. Thompson, 519
S.W.2d at 792-93. We agree with the appellant that the evidence presented at the second phase of
the trial was wholly circumstantial. The certified copies of the documents indicating that “Terry
Watson” and “Terry M. Watson” had prior convictions for driving under the influence did not
directly prove that the person named in those documents was the appellant, but merely allowed the
jury to so infer. Consequently, in typical circumstances this Court would be constrained to conclude
that the trial court’s failure to instruct the jury regarding circumstantial evidence is reversible error.
         However, in this case, the jury was properly charged on the distinction between direct and
circumstantial evidence during the guilt phase of the proceedings. The composition of the jury was
not altered after the jury returned the guilty verdict, and the trial court instructed the jury at the
second phase of the trial within a few hours of the trial court’s charge for the guilt phase.
Additionally, the trial court reminded the jurors that their obligation during the second phase of the
trial was identical to that during the initial phase. Therefore, under these particular circumstances,
we do not conclude that the trial court committed plain error in failing to give an instruction on
circumstantial evidence.
         This issue is without merit.




                                                    -9-
                                      CONCLUSION

        After a thorough review of the record before this Court, we conclude that there is no
reversible error. Accordingly, the judgment of the trial court is affirmed.




                                            -10-
