         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 26, 2002

               STATE OF TENNESSEE v. JEFF L. COURTNEY, III

                Direct Appeal from the Criminal Court for Hamblen County
                     No. 01-CR-011 James Edward Beckner, Judge



                                 No. E2001-01258-CCA-R3-CD
                                        August 20, 2002

The Hamblen County Grand Jury indicted the Defendant, Jeff L. Courtney, III, for one count of
driving under the influence, per se and for one count of driving under the influence, second offense.
A Hamblen County jury convicted the Defendant of driving under the influence, second offense, and
the trial court imposed a sentence of eleven months and twenty-nine days. The Defendant now
appeals his conviction, arguing that the trial court improperly commented on the evidence at trial,
that the trial court improperly instructed the jury, and that the evidence presented at trial was
insufficient to support the Defendant’s conviction. We conclude that the trial court did not
improperly comment on the evidence, that the jury instructions were proper, and that sufficient
evidence was presented at trial to support the Defendant’s conviction. Therefore, we affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR ., JJ., joined.

Paul G. Whetstone, Morristown, Tennessee, for the Appellant, Jeff L. Courtney, III.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Paige Collins, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        Morristown police officer Terry Sexton testified that just after midnight on November 26,
2000, he observed the Defendant driving a green minivan in the center lane of West Morris
Boulevard. Officer Sexton watched the Defendant proceed through an intersection while driving
in the center turning lane. Sexton then turned on his blue emergency lights, pulled behind the
Defendant, and attempted to make a traffic stop. The Defendant never stopped for the officer, but
eventually parked his vehicle in a convenience store parking lot. There, Sexton pulled behind the
Defendant and got out of his vehicle. As he was asking the Defendant to produce his driver’s
license, Sexton noticed that the Defendant emitted a strong smell of alcohol, that the Defendant’s
speech was slurred, and that the Defendant’s eyes appeared to be crossed. Officer Sexton testified
that the Defendant had trouble removing his license from his billfold. Sexton testified that he gave
the Defendant a series of field sobriety tests, the first of which was the “leg stance,” which the
Defendant was unable to perform because he had a “bad leg.” Sexton stated that he later learned
that the Defendant is physically impaired. Sexton testified that the Defendant was unable to focus
sufficiently to perform other sobriety tests. Sexton subsequently placed the Defendant under arrest
and transported him to the Morristown Police Department.

       Morristown police officer Heath Haney assisted with the arrest and testified that the
Defendant appeared to be under the influence of an intoxicant. Haney accompanied the Defendant
and Officer Sexton to the police department where the Defendant submitted to a breathalyzer test.
Officer Sexton testified that he used the Intoximeter EC-IR, a machine certified by the Tennessee
Bureau of Investigation (TBI) for testing blood alcohol ratios. According to Sexton, the TBI tests
each Intoximeter every three months for accuracy. Sexton reported that the machine used in this
case was tested and certified on September 25, 2000, two months prior to the Defendant’s arrest.
Officer Sexton testified that he was trained by the TBI to operate the Intoximeter and that he
followed standard operating procedures for testing the Defendant. Both Officer Sexton and Officer
Haney observed the Defendant for the requisite twenty minutes prior to the exam. During this time,
the Defendant did not consume any alcohol, smoke, or vomit; nor did he put anything into his
mouth. After the observation period, Officer Sexton entered the Defendant’s driver’s license
number and date of birth into the machine. He purged the Intoximeter to ensure that there were no
impurities in the system, and after the Intoximeter indicated that it was clear, he instructed the
Defendant to blow into the machine. The Defendant’s blood alcohol level registered at .24 percent.
The printout record from the Intoximeter showing the results of the Defendant’s test was offered into
evidence.

        Defense counsel questioned both officers regarding their knowledge of the Intoximeter. Both
officers testified that they had received proper training by the TBI to use the Intoximeter, but neither
could explain the internal workings of the machine. During Officer Sexton’s testimony, the trial
court indicated that the officers were not required to know precisely how the machine operated
internally:
        [Defense Counsel]: Did you know that this machine measures blood alcohol, or did
        you think it measured breath alcohol, because I personally thought it was ---
        [Prosecutor]: Objection, your Honor.
        [Defense Counsel]: -- breath alcohol.
        [Prosecutor]: It’s irrelevant.
        The Court: Sustained. It measures alcohol in the breath but it translates it into
        percentage of alcohol in the blood.
        [Defense Counsel]: And do you know how that works?
        [Prosecutor]: Your Honor, objection again.
        The Court: Sustained.

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       [Prosecutor]: He’s not required to know that.

       Defense counsel subsequently questioned Officer Haney about the mechanics of the
Intoximeter EC-IR:
       [Defense Counsel]: Okay. And this machine sort of polices itself to make sure that
       it’s not going to get or produce an unreasonable results or a wrong number based
       upon other and many thousands of chemicals that come across this photoelectric cell.
       Is that right?
       [Officer Haney]: Right
       [Prosecutor]: Your Honor, at this point I object.
       The Court: Sustained.
       [Defense Counsel]: And you have to have faith that the machine is going to work,
       don’t you?
       [Officer Haney]: Yes. It’s been my experience that it’s right according to whatever
       I think the condition of the driver is, the machine’s right.
       [Defense Counsel]: Okay. So you think the machine is right? You [sic] saying
       always right?
       [Officer Haney]: I’ve been a little off before, but generally it’s pretty much on the
       money.
       [Defense Counsel]: You have not heard of any of the reports of the result being
       skewed as a result of other chemicals in the breath?
After objection by the prosecution, the court asked the jury to disregard Officer Haney’s testimony
regarding the internal workings of the Intoximeter:
       [W]e’re just in an area where it take[s] a scientist or a medical expert to testify about
       it . . . . They don’t have to have an expert. The machine has been – I’m not
       validating the machine or speaking for its veracity, but it’s accepted generally
       scientifically. That’s the reason he can testify.

        The defense then presented several witnesses who testified that they were playing cards with
the Defendant until just before his arrest. The Defendant testified that he brought a case of beer to
the card game but consumed only one can of beer. He stated that he gave two other cans to friends
but could not remember to whom. When Officer Sexton pulled the Defendant over, three cans were
missing from a case of beer found in the Defendant’s possession. Witnesses from the card game
testified that they had seen the Defendant consume only one beer that night. One witness, a former
deputy with the Hamblen County Sheriff’s Department, testified that he had been trained to
recognize if someone was under the influence of an intoxicant and stated that the Defendant “seemed
fine” when he left the card game.

        The Defendant and his son both testified that the Defendant suffers from multiple medical
conditions which affect his ability to move and walk. As a result, the Defendant must take ten
prescription pills per day. The Defendant and his son testified the Defendant has trouble using his
hands and that although he is right-handed, the Defendant keeps his wallet on his left side because
he is better able to use his left hand. The Defendant testified that he used his left hand to produce
his driver’s license for Officer Sexton. During testimony, the Defendant explained that his

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additional physical limitations prohibited him from performing the field sobriety tests. Because of
this, he felt it was in his best interest to submit to the Intoximeter. The Defendant denied that he was
under the influence of alcohol and could not explain why he registered .24 on the Intoximeter.

        At the conclusion of the trial, the court issued the following instructions to the jury:
                 For you to find the defendant guilty of this offense, the state must have
        proven beyond a reasonable doubt the existence of the following essential elements:
                 One, that the defendant was driving an automobile or motor-driven vehicle;
                 And, two, that this act occurred on a public road or highway;
                 And, three, that the alcohol concentration in the defendant’s blood or breath
        was ten hundredths of one percent, point one zero or more.
Further, the court asked the jury not to concern itself with rulings on the admissibility of evidence,
stating that its rulings were not indicative of the court’s opinion as to the facts of the case or what
the verdict should be.

                                                    II. Analysis

       The Defendant now appeals his conviction, arguing that the trial court improperly
commented on the evidence at trial, that the trial court improperly instructed the jury, and that the
evidence presented at trial was insufficient to support the Defendant’s conviction.

                                         A. Comments on the Evidence

        First, the Defendant argues that the trial court committed reversible error and effectively
denied him his due process right to a fair trial by making statements related to the validity of the
Intoximeter. It is an established rule that a trial judge must not express any thought which would
lead a juror to infer that his opinion was in favor of or against a defendant. State v. Harris, 839
S.W.2d 54,66 (Tenn. 1992). However, the court may use its discretion in conducting a trial,
including ruling on the admissibility of evidence and the propriety of examination and argument.
Id.

        In this case, the trial court’s statements did not bear on the Defendant’s guilt or innocence.
Furthermore, they were correct statements of the law. The Tennessee Supreme Court has recognized
the reliability of properly-performed breath tests and has relaxed the prerequisites to establish
scientific reliability of the equipment. See State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992). In
Sensing, the court concluded that “it is no longer necessary for a certified operator of an evidentiary
breath testing instrument to know the scientific technology involved in the function of the machine.”
Id. This Court has stated that where the Sensing requirements are met, the Intoximeter EC-IR is
scientifically sound, and expert testimony is not required for its admission. State v. Korsakov, 34
S.W.3d 534, 540 (Tenn. Crim. App. 2000).1 Here, the trial court did not improperly comment on

         1
           In Korsakov, this Court noted that the Sensing case involved the use of an Intoximeter 300 0. Korsakov, 34
S.W.3d at 540. However, this Court concluded that “the foundational prerequisites established in Sensing for test results
                                                                                                         (continued...)

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the evidence or facts of the case, but merely declared the law. Therefore, this argument is without
merit.

                                             B. Jury Instructions

        Next, the Defendant argues that the trial court erred by failing to instruct the jury regarding
“permissible inferences” in accordance with Tennessee Pattern Instructions § 38.05. The Tennessee
Supreme Court has stated that “[q]uestions concerning the instructions are generally deemed to be
waived in the absence of objection or special request, unless they contain plain error.” State v.
Cravens, 764 S.W.2d 754, 757 (Tenn. 1989). Because the Defendant failed to request the special
instruction and failed to object to its omission, and because we find that the trial court did not
commit plain error in instructing the jury, the Defendant has waived the issue on appeal.

       Even so, the Defendant’s argument is without merit. The pattern instructions proposed by
the Defendant provide:
                You have heard from the proof that at the time of the defendant’s arrest, [he]
       . . . consented to and was given a test for the purpose of determining the alcohol
       content of the defendant’s blood.

                Evidence from the test that there was, at the time alleged, [ten hundredths of
        one percent (.10)] . . . or more by weight of alcohol in the defendant’s blood, creates
        an inference that the defendant was under the influence of such intoxicant, and that
        the defendant’s ability to drive was impaired.

                 ....

               However, you are never required to make this inference. It is the exclusive
        province of the jury to determine whether the facts and circumstances shown by the
        evidence in this case warrant any inference which the law permits you the jury to
        draw from any blood test result. Also, the inference may be rebutted by other
        evidence and circumstances.

                It is for the jury to determine, after a consideration of all the evidence,
         whether to make the inference which the law permits, the correctness of such
         inference, and what weight is to be given to such evidence.
T.P.I. - Crim. § 38.05 (footnotes omitted).

        As the State correctly points out, these instructions do not properly state the law for DUI, per
se. Tennessee Code Annotated § 55-10-401(a)(2) states, “It is unlawful for any person to drive . .
. while . . . [t]he alcohol concentration in such person’s blood or breath is ten hundredths of one

        1
          (...continued)
from an Intoximeter 3000 also apply to the Intoximeter EC-IR.” Id.



                                                       -5-
percent (.10%) or more.” Thus, as the State points out in its brief, having an “alcohol concentration
. . . ten-hundredths of one perscent (.10%) or more” is an element of the offense rather than the basis
of a reasonable inference. Consequently, a special instruction on permissible inferences was not
appropriate in this case. This issue is without merit.

                                   C. Sufficiency of the Evidence

        Finally, the Defendant contends that the evidence presented was insufficient to warrant his
conviction. When an accused challenges the sufficiency of the evidence, an appellate 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State
v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). 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, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
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.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). 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. Id.

        Here, the Defendant argues that the State failed to lay the necessary foundation for admission
of the breathalyzer results and that without these results, the evidence is insufficient to sustain a
guilty verdict. In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court
established foundational prerequisites for the introduction of breath test results. Id. at 416. The
court stated that prior to admitting breath test results,
        the testing officer must be able to testify (1) that the tests were performed in
        accordance with the standards and operating procedure promulgated by the forensic
        services division of the Tennessee Bureau of Investigation, (2) that he was properly
        certified in accordance with those standards, (3) that the evidentiary breath testing
        instrument used was certified by the forensic services division, was tested regularly
        for accuracy and was working properly when the breath test was performed, (4) that
        the motorist was observed for the requisite 20 minutes prior to the test, and during
        this period, he did not have foreign matter in his mouth, did not consume any
        alcoholic beverage, smoke, or regurgitate, (5) evidence that he followed the


                                                 -6-
       prescribed operational procedure, (6) identify the printout record offered in evidence
       as the result of the test given to the person tested.
Id.

        The transcript establishes that the six threshold prerequisites for introduction of the breath
test results were met in this case. Officer Sexton testified that the tests were performed in
accordance with the standards and operating procedures promulgated by the forensic services
division of the TBI, and he stated that he was properly certified in accordance with those standards.
He claimed that the instrument used was certified by the forensic services division, that it was tested
regularly for accuracy, and that it was working properly when the breath test was performed. Both
he and Officer Haney testified that the Defendant was observed for the requisite twenty minutes
prior to the test; they reported that during this time, the Defendant did not have foreign matter in his
mouth and that he did not consume any alcohol, smoke, or regurgitate. Officer Sexton testified that
he followed proscribed operational procedure, and he identified the printout record offered into
evidence as the result of the test given to the Defendant. Therefore, the Intoximeter results were
properly admitted in accordance with the Sensing requirements.

       Accordingly, we AFFIRM the judgment of the trial court.



                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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