         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 16, 2005

                 STATE OF TENNESSEE v. HALBERT VARNELL

                 Direct Appeal from the Criminal Court for Hamilton County
                            No. 239911 Rebecca J. Stern, Judge




                  No. E2004-02918-CCA-R3-CD - Filed October 6, 2005




A Hamilton County jury convicted the Defendant, Halbert Varnell, of driving under the influence
(“DUI”). The Defendant admitted that he had three previous DUI convictions, and the trial court
sentenced him for DUI, fourth offense, a Class E felony. The Defendant now appeals, contending
that: (1) insufficient evidence was presented at trial to support his DUI conviction; and (2) the trial
court erred by permitting improper closing argument by the State. Finding no reversible error, we
affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODALL, JJ., joined.

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee (on appeal) and Philip L.
Duval, Chattanooga, Tennessee (at trial) for the Appellant, Halbert Varnell.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William H. Cox III., District Attorney General; and Jay Woods, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

         This case arises from the Defendant’s conviction for DUI, fourth offense. At the Defendant’s
trial, the following evidence was presented: Nicholas Allen, an officer with the Chattanooga Police
Department, testified that, on the morning of July 30, 2001, at approximately 3:20 a.m., he saw the
Defendant driving his car with the headlights off. The officer said that he activated his emergency
lights, and he began to follow the Defendant. He recalled that the Defendant continued to drive for
one-half block, made a right turn, and continued for another half block, before he pulled his vehicle
over. Officer Allen testified that, when he approached the vehicle, the Defendant became agitated
and belligerent, and, because the Defendant was so agitated, he asked the Defendant if the Defendant
had been drinking. The Officer said that the Defendant acknowledged that he had been drinking, but
he refused to tell the officer what he had been drinking, or how much alcohol he had consumed.
Officer Allen testified that he asked the Defendant to step out of the Defendant’s vehicle so that the
Defendant could perform the field sobriety tests. He stated that the Defendant initially refused, but
the Defendant eventually, voluntarily, came out of his vehicle. Officer Allen testified that, after the
Defendant had exited his vehicle, he refused to take any of the field sobriety tests, and Officer Allen
noticed that the Defendant was unsteady as he walked, had slurred speech, and smelled strongly of
alcohol. Based on the Officer’s experience and training, the officer did not believe that the
Defendant could safely operate a motor vehicle, and he, therefore, placed the Defendant under arrest
for DUI.

        Officer Allen testified that, pursuant to this arrest, the officer brought the Defendant to jail.
He then stated that upon arrival at the jail, he read to the Defendant the implied consent form and
offered him a breathalyzer test, however, the Defendant refused to sign the implied consent form and
refused to take the breathalyzer test.

       On cross-examination, Officer Allen agreed that the Defendant was observing the speed limit,
was not swerving, and came to a complete stop at the intersection. He further conceded that,
although he testified that he detected a “strong odor of alcohol” when the Defendant exited his
vehicle, the affidavit of complaint that he filed after the Defendant’s arrest did not use the word
“strong” to describe the odor of alcohol, it simply stated that the “[p]olice could smell alcohol on
[D]efendant’s breath.” He explained that, the affidavit makes no mention of slurred speech, but he
might not include a person’s speech in an affidavit. The Officer had no independent recollection of
exactly where he observed the Defendant walking unsteadily. Officer Allen testified that, if the
Defendant were so unsteady that he could not possibly complete the field sobriety tests, the Officer
would not have asked him to attempt such tests.

         On redirect Officer Allen testified that he had worked as a patrol officer for nearly three years
since arresting the Defendant, he had received additional training, and he had made over two hundred
DUI arrests by the time the Defendant’s case came to trial. His opinion, that the Defendant was
unable to safely operate his motor vehicle, remained unchanged. However, Officer Allen conceded
that it would have been helpful if he had been more thorough in his completion of the affidavit.

       Following this evidence, the jury found the Defendant guilty of DUI. The Defendant
admitted that he had three prior DUI convictions, and the trial court entered judgment against the
Defendant for DUI, fourth offense.

                                              II. Analysis

      On appeal, the Defendant asserts that: (1) insufficient evidence was presented to support his
DUI conviction; and (2) the trial court permitted improper closing argument by the State.


                                                   -2-
                                    A. Sufficiency of Evidence

        The Defendant alleges that there is insufficient evidence in the record to support his DUI
conviction. When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering “the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). This Court must afford the State of Tennessee the strongest legitimate view of the
evidence contained in the record, as well as all reasonable inferences which may be drawn from the
evidence. Goodwin, 143 S.W.3d at 775. Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. See State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        Under Tennessee law, to support a conviction for DUI, the State is required to prove, beyond
a reasonable doubt, that the Defendant was driving or “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
. . . while . . . [u]nder the influence of any intoxicant . . . .” Tenn. Code Ann. §55-10-401(a)(1)
(2004). A criminal offense may be established exclusively by circumstantial evidence. State v.
Raines, 882 S.W.2d 376, 380 (Tenn. Crim. App. 1994) (citing State v. Hailey, 658 S.W.2d 547, 552
(Tenn. Crim. App. 1983)). However, before an accused can be convicted of a criminal offense based
on circumstantial evidence alone, the facts and circumstances “‘must be so strong and cogent as to
exclude every other reasonable hypothesis save the guilt of the defendant . . . .’” Id. (quoting State
v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)). “In other words, a web of guilt must be woven
around the defendant from which he cannot escape and from which facts and circumstances the jury
could draw no other reasonable inference save the guilt of the defendant beyond a reasonable
doubt.’” Id. (quoting Crawford, 470 S.W.2d at 613). We note that this Court has often found that
an arresting officer’s testimony alone is sufficient to support a defendant’s conviction for DUI. See,
e.g. State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim. App. 1993).

        In the case under submission, elements one and two, that the Defendant was driving a motor
vehicle and on a public road, are uncontroverted. The Defendant contends in his brief that there was
insufficient evidence presented to prove element three, that he was under the influence of an


                                                 -3-
intoxicant. We disagree. Viewing the evidence in the light most favorable to the State, it proves that
Officer Allen stopped the Defendant after he observed him driving at night without his headlights
on, and the Defendant was agitated and demanded to know why he had been stopped. The
Defendant admitted that he had been drinking alcohol, and the officer noted that the Defendant was
unsteady on his feet, had slurred speech, and smelled strongly of alcohol. The Defendant refused
to attempt to perform field sobriety tests, and the Defendant refused to submit to a breathalyzer test.
We conclude that this evidence is sufficient for a rational trier of fact to find the essential elements
of driving under the influence beyond a reasonable doubt.

                                 B. Improper Closing Argument

        The Defendant’s second assertion is that part of the State’s closing argument was improper.
Specifically, the Defendant objects to the following comments by the State, which were made during
its rebuttal closing argument:

                One piece of evidence you can take back in the jury room with you that hadn’t
       been testimonial in nature, you can look at it and feel that this is the form that was
       used with this [D]efendant on the night he was arrested for DUI. Given the
       opportunity to take the test he said no. Given the opportunity to take the standard
       field sobriety tests on the side of the road, he said no. Given the chance to sign his
       name to a form, he said no. He was hiding then and he’s hiding now, he is hiding
       behind three years and he wants you to believe that because the officer can’t
       remember every minute detail, the switch, was it a full switch or was it a turn switch.
       Because he can’t remember that detail, he wants you to believe that this [D]efendant
       [sic] is not truthful.

               He didn’t take the standard filed sobriety tests. He didn’t take the chemical
       tests. He didn’t sign the form. He was hiding then and he is hiding now. Why?

On appeal, as in his motion for a new trial, the Defendant asserts the State’s claim that the Defendant
is “hiding,” was an impermissible comment on the Defendant’s decision not to testify on his own
behalf. The State contends that the Defendant waived this issue when he failed to
contemporaneously object to the statement, and, even if the issue has not been waived, the comment
was simply a response to the Defendant’s closing arguments, not a comment on the Defendant’s
failure to testify.

        The State initially contends that the Defendant has waived this issue by failing to object
contemporaneously to the closing argument. At the close of trial, after the trial court had instructed
the jury, the Defendant’s attorney made a motion for judgment of acquittal, which the trial court
denied. The following then occurred:

       [Defendant’s Counsel]: Judge, I want to make a comment. I don’t know if it’s the
       right time to do it. I may have misinterpreted remarks of [the Prosecutor] in closing


                                                  -4-
       argument and I may not be recalling them correctly, I don’t know whether to bring
       them up now or later and I may be wrong in remembering what he said. But just
       thinking about while you were instructing the jury and I thought I heard him say that
       [the Defendant] was hiding then and he is hiding now. To me was an inference to his
       not testifying. I don’t have any other way to take it. He may not have intended it but
       I don’t even know I told you the words that he used.
       The Court: He didn’t comment on his testimony.
       [Prosecutor]: I said he was hiding then and he is hiding now behind three years that
       he blames the officer - -
       The Court: He didn’t comment on that, that’s all right.

Both parties agree that the Defendant raised this issue in his motion for new trial, and the State
responded then, as it does on appeal, that its comments were not addressing the Defendant’s failure
to testify, but were given in response to the Defendant’s closing argument. The Defendant’s
attorney, in closing argument, stated “the only written record of this case is three years ago” and
Officer Allen “acknowledged that he didn’t state it was a strong odor three years ago. He just said
in his report that police could smell alcohol” and “Officer Allen . . . doesn’t have any real
independent recollection of how unsteady [the Defendant] was” and “Officer Allen’s testimony is
faded.” The trial court did not treat this issue as waived, and it addressed the issue on its merits,
finding:

               I think in context, the overall context of everything, it was not a comment on
       his failure to testify in court. In addition, of course, I gave instructions to the jury
       that comments by attorneys weren’t evidence and also I gave an instruction about the
       [D]efendant’s right not to testify.

               I think in all of the context, it could be taken another way, the way [the
       Assistant District Attorney General] apparently meant it. You were right on that
       borderline, it was a risky comment. I don’t think it was in fact a comment on his
       right not to testify.

         Although the better course for defense counsel may have been to immediately object, during
the State’s closing argument, to the allegedly prejudicial statements made during that argument, we
are not inclined to conclude that the Defendant has waived this issue. The issue was brought to the
attention of the trial judge, and ruled upon, prior to the jury deliberations. Under the circumstances
of this case, we choose to address this issue on the merits. See generally Goins v. State, 572 S.W.2d
644 (Tenn. 1978).

        The Tennessee Supreme Court “has long recognized that closing arguments are a valuable
privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)
(citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)); State v. Goltz, 111 S.W.3d 1, 5 (Tenn.
Crim. App. 2003). “Consequently, attorneys are given greater leeway in arguing their positions
before the jury, and the trial court has significant discretion in controlling these arguments, to be


                                                 -5-
reversed only upon a showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing
Sutton, 562 S.W.2d at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975); Goltz, 111
S.W.3d at 5. This Court has explained that “[closing] arguments must be temperate, based upon the
evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the
facts or law.” Goltz, 111 S.W.3d at 5 (citing Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.
1995)).

        When an appellate court finds an argument to be improper, “the established test for
determining whether there is reversible error is whether the conduct was so improper or the argument
so inflammatory that it affected the verdict to the Appellant’s detriment.” Goltz, 111 S.W.3d at 5
(citing Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). In measuring the
prejudicial impact of an improper argument, this Court should consider the following factors: “(1)
the facts and circumstances of the case; (2) any curative measures undertaken by the court and the
prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength or weakness of the case.” Goltz, 111
S.W.3d at 5-6 (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v.
Buck, 670 S.W.2d 600, 609 (Tenn. 1984).

       In Goltz, this Court found that within the closing argument, five general areas of
prosecutorial misconduct are recognized:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.
       2. It is unprofessional conduct for the prosecutor to express his [or her] personal
       belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of
       the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999);
       Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); TENN . CODE OF
       PROF’L RESPONSIBILITY DR 7-106(c)(4).
       3. The prosecutor should not use arguments calculated to inflame the passions or
       prejudices of the jury. See [State v.]Cauthern, 967 S.W.2d [726,] 737 (1998); State
       v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).
       4. The prosecutor should refrain from argument which would divert the jury from
       its duty to decide the case on the evidence, by injecting issues broader than the guilt
       or innocence of the accused under the controlling law, or by making predictions of
       the consequences of the jury’s verdict. See Cauthern, 967 S.W.2d at 737; State v.
       Keen, 926 S.W.2d 727, 736 (Tenn. 1994).
       5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts
       outside the record unless the facts are matters of common public knowledge.

Goltz, 111 S.W.3d at 6 (quoting STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE
DEFENSE FUNCTION §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal Justice,
Approved Draft 1971)).



                                                 -6-
        When a defendant elects not to testify at trial, a prosecutor may not comment upon the
defendant’s failure to make a statement to the police because this would punish the defendant for
exercising his or her constitutional right to remain silent. Braden v. State, 534 S.W.2d 657, 659-60
(Tenn. 1976). The United States Supreme Court has held that it is “impermissible to penalize an
individual for exercising his Fifth Amendment privilege when he is under police custodial
interrogation. The prosecution may not, therefore, use at trial the fact that [a defendant] stood mute
or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468 (1966).
A prosecutor may comment upon the defendant’s veracity when the comment is supported by
evidence in the record. State v. West, 767 S.W.2d 387, 394 (Tenn. 1989); State v. Beasley, 536
S.W.2d 328, 330 (Tenn. 1976).

        However, this Court has held that comments indicating that the State’s proof remains
uncontradicted do not implicate the defendant’s choice not to testify. Thompson v. State, 958
S.W.2d 156, 168 (Tenn. Crim. App. 1997) (reviewing the failure to object to the State’s argument
that the defendant had offered no defense to the crime); State v. Thomas, 818 S.W.2d 350, 364
(Tenn. Crim. App. 1991) (analyzing the State’s comment that “there’s no other reasonable
explanation, none given”); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985)
(analyzing the State’s argument that the defendant had offered no “excuse or justification” for his
escape); State v. Coury, 697 S.W.2d 373, 378 (Tenn. Crim. App. 1985).

       After careful review of the record, we conclude that, the reference to the Defendant “hiding”
was not improper. It was a proper response to the Defendant’s closing argument, which attacked the
Officer’s memory of events that occurred three years prior to the Defendant’s trial. Therefore, it was
proper argument.

        Even were we to conclude otherwise, and determine that these arguments were improper, we
would still be called to determine whether the Defendant has proved prejudice. As part of this
inquiry, we must look at any curative measures undertaken by the trial court, and this includes
curative instructions. As the trial court noted, it instructed the jury:

       Any defendant in a criminal case has a right, as a matter of law, to refrain from
       testifying, and you are not to indulge any adverse inference against him by reason of
       the fact that he did not testify, but you will decide the case solely from the evidence
       which was introduced, and not from any motive of why he did not testify.

        Although not given as curative instructions, these instructions were thorough and clear,
alleviating any possible confusion regarding the effect of the Defendant’s failure to testify. Given
these circumstances, we conclude that any allegedly improper arguments by the State would not have
prejudiced the Defendant. We conclude, therefore, that this issue is without merit.

                                          III. Conclusion

       In accordance with the foregoing, we conclude that the trial court committed no reversible


                                                 -7-
error. Therefore, the judgment of the trial court is affirmed.

                                                       ____________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -8-
