            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             APRIL 1998 SESSION
                                                            July 15, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,            *    C.C.A. # 01C01-9706-CC-00215 Clerk
                                                    Appellate Court

      Appellee,                *    RUTHERFORD COUNTY

VS.                            *    Hon. James K. Clayton, Jr., Judge

EARNEST EUGENE TRAVIS,         *    (Driving Under the Influence)

      Appellant.               *




For Appellant:                      For Appellee:

Peter D. Heil, Attorney             John Knox Walkup
P.O. Box 40651                      Attorney General and Reporter
Nashville, TN 37204
(on appeal)                         Daryl J. Brand
                                    Assistant Attorney General
David E. Brandon, Attorney          425 Fifth Avenue North
211 Third Avenue North              Second Floor, Cordell Hull Building
Nashville, TN 37201                 Nashville, TN 37243-0493
(at trial and on appeal)
                                    William E. Whitesell
                                    District Attorney General
                                    Third Floor, Judicial Building
                                    Murfreesboro, TN 37130




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                             OPINION



                The defendant, Earnest Eugene Travis, was convicted in a bench trial

of driving under the influence of an intoxicant. The trial court imposed a sentence of

eleven months and twenty-nine days, granted supervised probation after forty-eight

hours in jail, and revoked the driver's license of the defendant. In this appeal of

right, the defendant challenges the sufficiency of the evidence, argues that the

opinion testimony of the police officers should have been excluded, and contends

that the trial judge impermissibly considered personal knowledge in making his

decision.



                We find no error and affirm the judgment of the trial court.



                At 2:00 A.M. on August 9, 1995, Officer Stacey Thompson of the

Lavergne Police Department observed a red Toyota driven by the defendant

weaving along a public road. After stopping the defendant's vehicle, Officer

Thompson detected a strong odor of alcohol. According to the officer, who

administered field sobriety tests, the defendant "failed to perform satisfactorily." In

Officer Thompson's opinion, the defendant was intoxicated.



                Sergeant Sam Spicer, who performed a breathalyser test, testified

over objection that he believed the defendant to be intoxicated. The result of the

test was excluded, however, because the defendant was not observed for the

requisite period of time.1




        1
          The trial court found that the defendant had been observed for seventeen minutes rather
than the tw enty min utes req uired by law. See State v. Sensing, 843 S.W .2d 412 ( Tenn . 1992).

                                                  2
                 The defendant acknowledged that he had consumed between three

and six beers over a period of six to seven hours while he had been fishing with his

brother. He explained that he had been barefoot when he performed the field

sobriety test.



                 There was no transcript of the trial. A statement of the evidence

prepared by counsel for the defendant serves as the record.



                 The statement, filed by the defendant in lieu of a transcript under

Tenn. R. App. P. 24(c), makes reference to the comments of the trial judge:

                 [T]he judge indicated that he attended a judicial seminar
                 which had addressed the number of drinks that would
                 result in intoxication and based on such information
                 found the defendant guilty of D.U.I. and assigned first-
                 time D.U.I. sanctions.



                 The state filed no objections to the content of the statement of the

evidence and otherwise chose not to supplement the narrative summary of the proof

presented in the trial court.



                 The initial challenge is to the sufficiency of the evidence. On appeal,

the state is entitled to the strongest legitimate view of the evidence and all

reasonable inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be

given their testimony, and the reconciliation of conflicts in the testimony, however,

are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conviction can be set aside only when

the reviewing court finds that the "evidence is insufficient to support the finding by

the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13 (e). In a


                                              3
bench trial, the trial judge's findings on questions of fact are given the weight of a

jury's verdict. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978); State v.

Hatchett, 560 S.W.2d 627 (Tenn. 1978).



              In our view, the evidence was sufficient to support the conviction.

While the statement of the evidence obviously did not include all of the testimony at

trial, each of the elements of driving under the influence of an intoxicant were

established. Tenn. Code Ann. § 55-10-401. The defendant admitted that he had

consumed several beers. The record indicates that his car was weaving just before

his arrest. He failed one or more sobriety tests and each of two officers held the

opinion that the defendant was intoxicated.



              Next, the defendant argues that the trial judge should have excluded

the opinion testimony of the two officers that the defendant was intoxicated. The

defendant insists that there was no foundation for the testimony. We disagree.



              Rule 701(a) of the Tennessee Rules of Evidence permits a lay witness

to express an opinion if (1) the opinion is "rationally based on the perception of the

witness," and (2) it is "helpful to a clear understanding of the witness's testimony or

the determination of a fact in issue." The statement of evidence suggests that each

of the two officers had a reasonable opportunity to observe the demeanor of the

defendant. One of the officers who made the arrest administered a field sobriety

test. The other observed the defendant for several minutes before administering a

breathalyser test. The Advisory Commission Comments to Rule 701 provide that "a

lay witness may testify that a person was 'drunk' or that a car was traveling 'fast.'"

The record establishes that each of the lay witnesses had a basis for rendering his

opinion.


                                            4
               As his final argument, the defendant submits that what the trial judge

had learned at a judicial seminar about the number of drinks that would result in

intoxication qualified as extra-judicial evidence rendering the verdict unreliable. In

Vaughn v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132 (Tenn. 1991), our

supreme court established guidelines governing extra-judicial observations:

               There is ample authority for the proposition that a judge
               is not to use from the bench, under the guise of judicial
               knowledge, that which he knows only as an individual
               observer outside of the judicial proceedings. 9 Wigmore,
               Evidence, § 2569 at 723 (1981). Judicial knowledge
               upon which a decision may be based is not the personal
               knowledge of the judge, but the cognizance of certain
               facts the judge becomes aware of by the virtue of the
               legal procedures in which he plays a neutral role. State
               v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 188
               (1968). No judge is at liberty to take into account
               personal knowledge which he possesses when deciding
               upon an issue submitted by the parties. Laurance v.
               Laurance, 198 Ore. 630, 258 P.2d 784, 787 (1953). In
               other words, "[i]t matters not what is known to the judge
               personally if it is not known to him in his official capacity."
               Galbreath v. Noland, 58 Tenn. App. 260, 429 S.W.2d
               447, 450 (1967).



               In Vaughn, a worker's compensation case, the trial judge remarked in

his memorandum opinion that he had observed the claimant on three separate

occasions outside of the courtroom. The trial judge observed, "This man looks and

walks a little better than death warmed over," before determining that the claimant

had an eighty percent permanent-partial disability to the body as a whole. The

supreme court reversed the judgment and remanded for a new trial with a different

judge.



               This case is distinguishable on the facts. The trial judge knew nothing

of the particular circumstances of this offense except through the evidence

presented by the state and the defense. Because there is no verbatim transcript of

this trial, it is difficult to assess the context in which the reference to a judicial

                                              5
seminar was made. The general knowledge of a trial judge about the effects of

alcohol or general knowledge otherwise acquired through professional training is

almost inevitably a part of a judicial determination in a bench trial. "Although

litigants are entitled to a judge who will hear both sides and decide an issue on the

merits of the law and the evidence presented, they are not entitled to a judge whose

mind is a clean slate. Each judge brings to the bench the experiences of life, both

personal and professional." Madsen v. Prudential Fed. Sav. & Loan, 767 P.2d 538,

546 (Utah 1988) (emphasis added); see generally, Montegut v. Davis, 473 So. 2d

73, 80 (La. App. 1985) ("Obviously a judge cannot decide cases in a vacuum; we all

must use our accumulated knowledge and experience in evaluating evidence and

determining what makes one witness more believable than another. Under the

circumstances, the judge's mention of his knowledge [of local real estate trends]

was harmless error if it was error at all.") Discretion suggests that references to

these ordinary experiences are often better left unsaid. W hether those matters

qualify as reversible error, however, depends upon the extent and context of the

remarks in view of the evidence presented at trial. See generally, State v. Raines,

882 S.W.2d 376, 385 (Tenn. Crim. App. 1994)(sentence affirmed although trial

judge erroneously applied enhancement factor based on trial judge's recollection of

having seen the victim rather than evidence presented to the court by the parties);

see also Kay E. Blackwood v. Berkline Corp., No. 01S01-9609-CV-00190 (Tenn.,

May 21, 1997)(harmless error for trial judge to take judicial notice of the credibility of

a witness). Here, there was sufficient evidence to support the conviction. The trial

judge had a sound basis for a determination of guilt and, when confronted with his

extra-judicial statement at the motion for new trial, he nonetheless declined relief. It

is the duty of the appellant to prepare a record which conveys a fair, accurate, and

complete account of what transpired in the trial court with respect to the issues

which form the basis of the appeal. State v. Miller, 737 S.W.2d 556 (Tenn. Crim.


                                            6
App. 1987); Tenn. R. App. P. 24(c). In the absence of a more complete record for a

determination on a particular issue, this court must conclude that the trial court

correctly ruled. See Smith v. State, 584 S.W.2d 811 (Tenn. Crim. App. 1979);

Vermilye v. State, 584 S.W.2d 226 (Tenn. Crim. App. 1979).



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L. T. Lafferty, Special Judge




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