        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs June 29, 2010 at Knoxville

               STATE OF TENNESSEE v. STEVE BILLMAN, JR.

                   Appeal from the Circuit Court for Wayne County
                        No. 14531 Jim T. Hamilton, Judge




               No. M2009-02169-CCA-R3-CD - Filed November 18, 2010




The Defendant, Steve Billman, Jr., was convicted of driving under the influence (DUI),
second offense, a Class A misdemeanor, and violation of the implied consent law, a Class
C misdemeanor. Following a sentencing hearing, the trial court sentenced the Defendant for
DUI, second offense, to 11 months and 29 days suspended to probation following the service
of 60 days in the county jail. In this appeal as of right, the Defendant contends that (1) the
evidence was insufficient to sustain his conviction for DUI and that (2) the trial court erred
in denying the Defendant’s motion for a mistrial. Following our review, we conclude that
the trial court abused its discretion in declining to grant a mistrial. Therefore, we reverse the
judgment of the trial court and remand the case for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed;
                                 Case Remanded.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Anita Zona-Peters, Lawrenceburg, Tennessee (on appeal); and John S. Colley, III, Columbia,
Tennessee (at trial), attorneys for appellant, Steve Billman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; T.
Michael Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant District
Attorney General, attorneys for appellee, State of Tennessee.
                                               OPINION

       The Defendant was initially indicted for DUI, second offense; violation of the implied
consent law; and possession of marijuana. Following a hearing on the Defendant’s motion
to suppress the marijuana found during the stop, the possession of marijuana charge was
dismissed.

        At trial, Deputy Cameron Clay McDonald of the Wayne County Sheriff’s Department
testified that he was not working the night the Defendant was arrested, October 29, 2008.
As he was driving home from his parent’s house in his personal vehicle, the Defendant
passed him at a “high rate of speed.” Deputy McDonald stated that he was driving south on
Highway 13 when the Defendant “came around [him] real quickly and got back in the
southbound lane.” He called Sergeant Aaron Cody Mace1 and told him about his
observations because he knew that Sergeant Mace was working that night. After the
Defendant passed him, he saw the Defendant cross “into the opposite lane of traffic” for
approximately eight seconds. Deputy McDonald continued to follow the Defendant at a
reasonable distance while continually updating Sergeant Mace. Once they arrived into town,
the Defendant went to Barlow’s One Stop drive-thru. Deputy McDonald went to the Piggly
Wiggly parking lot and parked where he could observe the Defendant. When the Defendant
left the store, Deputy McDonald pulled behind the Defendant and followed him. As he was
following, he saw that the Defendant’s tires “crossed into the turning lane at least three
times.” Additionally, he observed the Defendant as the Defendant “roll[ed] through [a] stop
sign.” When Sergeant Mace arrived and started to follow the Defendant, Deputy McDonald
went home. Deputy McDonald stated that had he been working that night, he would have
stopped the Defendant when he crossed into the opposite lane of traffic on Highway 13.

       On cross-examination, Deputy McDonald stated that he was driving 55 or 60 miles
per hour when the Defendant passed him. He admitted that the Defendant passed him in a
passing zone and stated that the Defendant was likely driving 65 or 70 miles per hour. He
admitted that he went to the sheriff’s department that night but stated that he did not go there
for any “particular reason.” On re-direct examination, Deputy McDonald said that he called
Sergeant Mace because he was concerned “[f]or the safety of the public.” On re-cross
examination, Deputy McDonald admitted that the dispatcher called him that night at 7:02
p.m. and told him that Sergeant Kenneth Thompson needed him to come to the sheriff’s
department as soon as possible.

       Sergeant Mace testified that he was Deputy McDonald’s training officer and that he
was at the sheriff’s department working on a report when he received a call from Deputy

       1
           Sergeant Mace was a deputy on the night of the Defendant’s arrest.

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McDonald. Sergeant Mace called Officer Deas of the Waynesboro Police Department to
report the Defendant’s suspicious driving; however, Officer Deas was unable to assist in
apprehending the Defendant. Therefore, Sergeant Mace drove to the town square, where he
saw the Defendant “roll through [a] stop sign.” He followed the Defendant and turned on
his lights to stop the Defendant. The Defendant stopped his car, and Sergeant Mace told him
to drive to the nearby parking lot of an apartment complex. As he was parking, Sergeant
Thompson arrived at the apartment complex and stopped to assist Sergeant Mace.

       Sergeant Mace approached the Defendant and noticed that the Defendant’s eyes were
“bloodshot.” He told the Defendant that he stopped him for “coasting through the stop sign”
and that he had also received a call about the Defendant’s driving. When the Defendant
responded, Sergeant Mace noticed that the Defendant’s speech was “very slurred.” Sergeant
Mace did not notice the smell of alcohol; therefore, he asked the Defendant if he was taking
any prescription medications. The Defendant said that he had not taken any medications.
Sergeant Mace eventually asked the Defendant to get out of his vehicle, and Sergeant
Thompson searched the Defendant for weapons and found a bulge in his pocket. Upon
further investigation, they found that the Defendant had approximately 10,000 dollars in “a
big wad” in his pocket.

       Eventually, the officers conducted several field sobriety tests, which were recorded.
Portions of the videotape were played for the jury. Sergeant Mace stated that the Defendant
did not keep his arms to his side while performing the one-legged stand test; that the
Defendant touched his nose with the middle part of his index finger and was confused while
performing the index-finger-to-nose test; and that the Defendant stepped ten times instead
of nine and did not step heel-to-toe on several occasions while performing the nine-step walk
and turn test. Sergeant Mace arrested the Defendant because he believed the Defendant was
“impaired and a potential danger to the safety of the public.”

        After the Defendant was arrested, Sergeant Mace read the implied consent form to the
Defendant. The Defendant refused to provide a blood sample and refused to sign the form.
Sergeant Mace also searched the Defendant’s car and found two pill bottles in the front
console of the vehicle. One bottle was filled with Lortab, and the other bottle was filled with
Penicillin. The label on the bottle of Lortab indicated that there should be 15 pills in the
bottle, but there were only 8 pills in the bottle. When asked about the pills, the Defendant
stated that he had been to the dentist at 2:00 p.m. that day and that the dentist prescribed the
medication. The Defendant was stopped between four and five hours after the dental
appointment.

      On cross-examination, Sergeant Mace stated that he followed the Defendant for
approximately one half a mile before he stopped him. He admitted that the Defendant was

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able to move his vehicle to the apartment complex without incident. He also admitted that
the Defendant told him that he had a head injury and that he was awarded the 10,000 dollars
in a settlement agreement. He stated that the Defendant refused to consent to a search of his
car. He admitted that when he had the Defendant perform the field sobriety tests, he had not
found the pill bottles yet. However, he believed that the Defendant’s “red eyes and slurred
speech” indicated that he should conduct the field sobriety tests. He admitted that the
Defendant’s performance was adequate on the one legged stand test because he only lifted
his arm once. However, the Defendant had to search for his nose two or three times, touched
his nose with the middle part of his finger, and only touched his nose correctly two times
while performing the index-finger-to-nose test. He admitted that he did not remember and
did not write down how many milligrams were in the Lortab pills. He also admitted that the
Defendant only swayed a “little bit” during the traffic stop and stated that the Defendant
“wasn’t drunk.”

      Sheriff Ric Wilson of the Wayne County Sheriff’s office testified that he interrogated
the Defendant on the night of the Defendant’s arrest. He stated that after the Defendant
waived his Miranda rights, the Defendant gave a statement that was later typewritten. The
Defendant’s statement was introduced into evidence.

       In the statement, the Defendant said that he was not driving fast and that he was not
under the influence of any drugs or intoxicants. The Defendant admitted that he had taken
some pain medication sometime around 4:00 or 5:00 p.m. At first, the Defendant stated that
he only took one Lortab pill but then stated that he took another pill later in the day. The
Defendant said that he did not know what happened to the rest of the pills.

       Sheriff Wilson testified that the Defendant “had a little bit of thick tongue when he
was talking” and that the Defendant’s speech was “sort of slurred.” He believed that the
Defendant’s eyes were “redder” than they should have been and that the Defendant seemed
confused. On cross-examination, Sheriff Wilson stated that he could not recall the exact
strength of the Lortab pills.

                                        ANALYSIS

                                       I. Sufficiency

       The Defendant contends that the evidence was insufficient to sustain his conviction
when the videotape of the field sobriety tests belied the officer’s assertions that the
Defendant appeared intoxicated and performed poorly on the tests. The State responds that
the evidence was sufficient to sustain the conviction.



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        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing 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). The court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the state.
See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and
the weight and value to be given to evidence were resolved by the jury. See State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the presumption of
innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has the
burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.;
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] 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).

      The Defendant was convicted of DUI in violation Tennessee Code Annotated section
55-10-401. The statute states, in pertinent part:

              (a) 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 the person’s
                     blood or breath is eight-hundredths of one percent
                     (.08%) or more.

Tenn. Code Ann. § 55-10-401(a).

       In the instant case, Deputy McDonald informed Sergeant Mace that the Defendant was
driving in excess of the speed limit and traveling in the wrong lane. When Sergeant Mace
observed the Defendant, he saw the Defendant roll through a stop sign without coming to a

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complete stop. Sergeant Mace testified that the Defendant had bloodshot eyes; that the
Defendant’s speech was “very slurred;” and that seven pills were missing from the bottle of
Lortab that was prescribed that afternoon. Sheriff Wilson testified that the Defendant’s eyes
were “redder” than normal; that the Defendant “had a little bit of thick tongue when he was
talking;” that the Defendant’s speech was “sort of slurred;” that the Defendant seemed
confused; and that the Defendant admitted taking two Lortab pills that afternoon.

        We acknowledge that the Defendant performed relatively well on the field sobriety
tests that were videotaped; however, the third test, the nine-step walk and turn test, was not
captured on videotape. This court has held that in DUI cases, a police officer’s testimony,
by itself, is sufficient evidence to convict a defendant of driving under the influence. See
State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim. App. 1993). Additionally, “[t]he
evidence need only show . . . that [the Defendant] was under the influence of an intoxicant
[or narcotic drug] at the time the offense occurred.” State v. Lane, 673 S.W.2d 874, 876
(Tenn. Crim. App. 1983); see also Tenn. Code Ann. § 55-10-401(a)(1). Accordingly, we
conclude that based upon the evidence presented in the form of testimony from Deputy
McDonald, Sergeant Mace, and Sheriff Wilson, the evidence was sufficient to sustain the
Defendant’s conviction of driving under the influence of Lortab, a narcotic drug.

                                         II. Mistrial

        The Defendant contends that the trial court erred in declining to grant a mistrial when
the jury was given the Defendant’s unredacted statement that referenced the marijuana plant
found in his vehicle. The State notes that the trial court stated its reasoning for denying the
Defendant’s motion for a mistrial in the motion for new trial hearing and responds that
because the transcript of the motion for new trial hearing was not included in the record on
appeal, this issue should be waived. The State also responds that the trial court did not err
in declining to grant a mistrial because there was no indication that the jury read or
considered the erroneously admitted statement. The Defendant responds that this court
should not waive the issue for failure to supplement the record but should consider this issue
pursuant to the plain error doctrine.

        When the jury retired to the jury room to deliberate, the trial court sent four exhibits
with the jury. Included in the exhibits was the Defendant’s unredacted statement to police
that was filed for record-keeping purposes. In that statement, Sheriff Wilson questioned the
Defendant about the marijuana found in his vehicle and asked the Defendant how long he
had been growing marijuana. When the trial court realized that the Defendant’s unredacted
statement was sent back with the jury, the trial court retrieved the document and spoke with
the jury foreman. The trial court asked the jury foreman if the jury had looked at the exhibits.
In response, the jury foreman stated, “Briefly. Not everyone looked at all of them.” The trial

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court sent the jury back to the deliberation room, and defense counsel requested a mistrial.
The State suggested that a curative instruction might be helpful, but the trial court and
defense counsel agreed that a curative instruction would not be helpful. The trial court took
the motion for a mistrial under advisement until the jury returned with a verdict. After the
verdict was announced, defense counsel again moved for a mistrial. In response, the trial
court stated, “I’m overruling that.” Upon further discussion by the State and defense counsel,
the trial court stated, “Let the appellate court decide that.”

         We first note that application of the plain error doctrine to this case is inappropriate.
The trial court sent the inadmissible document back with the jury, and the Defendant moved
for a mistrial as soon as the trial court discovered its error. The Defendant also raised the
mistrial issue in his motion for new trial and raised the issue again on appeal. Additionally,
all of the post-trial notices and motions were timely. Therefore, this issue has been properly
preserved for our review. At issue is whether the absence of the transcript of the motion for
new trial hearing hinders our review of whether the trial court abused its discretion in
denying the motion for new trial.

        The decision of whether to grant a mistrial is “within the sound discretion of the trial
court,” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996), and the trial
court’s ruling will not be disturbed absent a finding of an abuse of discretion. State v.
Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). The grant of a mistrial “is usually appropriate
in a criminal case only where there is a ‘manifest necessity’” for such action by the trial
court. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996) (quoting Arnold v.
State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). A mistrial may be declared when
“some matter has occurred which would prevent an impartial verdict from being reached.”
Id. (citing Illinois v. Somerville, 410 U.S. 458, 464 (1973)). On appeal, the defendant bears
the burden of establishing that a “manifest necessity” for granting a mistrial existed. Id.

        Relative to the State’s assertion that this issue is waived, we conclude that the
evidence provided in the record is sufficient “to convey a fair, accurate and complete account
of what transpired with respect to those issues which are the bases of appeal.” Tenn. R. App.
P. 24(b). We note that we have the same documents that were before the trial court when the
trial court made its decision. Accordingly, we conclude that the record before us “provides
a sufficient amount of information to determine” whether the trial court abused its discretion
in declining to grant a mistrial. State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

       In determining whether the trial court should have granted a mistrial, we must first
determine whether the jurors were exposed to the inadmissible statement. See State v. Daniel
Everett Meador, No. E2008-01710-CCA-R3-CD, 2009 WL 4738755, at *8 (Tenn. Crim.
App. Dec. 11, 2009) (concluding that the defendant had established that a manifest necessity

                                               -7-
for granting a mistrial existed and that plain error existed when the jury specifically asked
about the challenged document during deliberations). When prompted by the trial court, the
jury foreman indicated that not all of the jurors had viewed the four exhibits that were sent
back with the jury. The jury foreman’s assertion implied that at least some of the jurors had
viewed the four exhibits that were sent back with the jury. It is important to note that the
inadmissible portion of the Defendant’s statement appeared on the front page of the exhibit.
Thus, we conclude that at least some of the jurors viewed the inadmissible document.

        Having determined that the jury was exposed to the inadmissible evidence, we must
now determine whether the trial court abused its discretion in declining to grant a mistrial.
In Meador, we concluded that the admission of the defendant’s breathalyzer test results,
which were previously deemed inadmissible, prevented an impartial verdict from being
reached when the defendant was charged with DUI. Id. Here, the document at issue was the
Defendant’s unredacted statement that referenced the fact that he had been selling marijuana
for three years and that he had a marijuana plant in his vehicle. While we have held that the
proof was sufficient to support the verdict, the proof was not overwhelming. In addition, as
the trial court remarked, the defendant “did very well” on the field sobriety tests that were
videotaped. The proof at trial established that the Defendant’s impairment resulted not from
alcohol but from the Defendant’s own prescription medication. Accordingly, we conclude
that admission of the Defendant’s inadmissible statement that referenced the Defendant’s
marijuana plant and his three-year established practice of growing and selling marijuana
“prevent[ed] an impartial verdict from being reached.” Arnold, 563 S.W.2d at 794.
Therefore, when the error came to the trial court’s attention, the Defendant’s motion for a
mistrial should have been granted, and the failure to grant the motion was an abuse of the
trial court’s discretion. See State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002); Adkins, 786
S.W.2d 642 at 644.

                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are reversed. The case is remanded for a new trial.


                                                   ________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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