        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                       NOVEMB ER SESSION, 1997       February 4, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9701-CC-00022
                            )
      Appellee,             )
                            )
                            )    WILLIAMSON COUNTY
VS.                         )
                            )    HON . DON ALD P . HARR IS
STACY LYNN COLLIER,         )    JUDGE
                            )
      Appe llant.           )    (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF WILLIAMSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

VANESSA P. BRYAN                 JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
P.O. Box 68
Franklin, TN 37065               JANIS L. TURNER
                                 Assistant Attorney General
                                 425 5th Avenu e North
                                 Nashville, TN 37243

                                 JOE D. BAUGH, JR.
                                 District Attorney General

                                 JOHN BARRINGER
                                 Assistant District Attorney General
                                 P.O. Box 937
                                 Franklin, TN 37065-0937




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                       OPINION

       The Defe ndan t, Stacy Lynn C ollier, ap peals as of rig ht purs uant to Rule 3

of the Tennessee Rules of Appellate Procedure.                     She was convicted by a

Williamson County jury of driving un der the influence of an intoxicant (“DU I”).1

The trial court sen tenced her to thirty da ys in the co unty jail, all suspended except

for forty-eight hours, and eleven months and twenty-nine days of supervised

probation. The trial co urt also im posed a fine of thre e hund red fifty dollars

($350), revoke d the D efend ant’s d river’s license for one year, and ordered that

she use an ignition interlock during he r probationary period.2 In this appeal, the

Defendant argues that the evidence was legally insufficient to support her

conviction, that the trial court erred in admitting the result of an Intoximeter 3000

breath test, and that the trial court erred in admitting testimo ny concern ing a

horizontal gaze nystagmus (“HGN”) field sobriety test. After reviewing the record,

we conclude that the Defendant’s issues provide no basis for the reversal of her

conviction . Accord ingly, we affirm the judgm ent of the tria l court.



       The State’s proof at trial consisted of the testimony of two officers of the

Fairview, Tennessee Police Department. Officer Joe Singer testified that he had

been a police o fficer for two and one-half years and had received specialized

training in DUI detection. At approximately 4:30 a.m. on the morning of May 14,

1995, Singer was driving his marked patrol car north on Highway 96 in Fairview.

He observe d a vehicle traveling tow ard him with the left fron t tire on the center


       1
           Tenn. Code Ann. § 55-10-401.
       2
           The trial court noted that the Defendant would be eligible for a restricted driver’s
license.

                                                -2-
line. As the car pa ssed him, h e swe rved slig htly but wa s able rema in in his lane.

After the car had passed him, he watche d the vehicle throu gh his rearview m irror.

Singer saw the car drift over the center line of the highway to the point where the

vehicle ’s mid-line w as over th e cente r line. After obs erving the movem ents of the

vehicle, Singer suspected that the driver was potentially intoxicated or asleep at

the wheel. He turned his patrol car around, pursued and caught up with the

vehicle in question. He initiated an investigatory stop. The Defendant was the

driver of the vehicle.



      Officer Singer n oted tha t the Defe ndant p ulled over onto the side of the

road abruptly. Upon approaching the Defendant, he noticed a moderate odor of

alcoh ol. According to Singer, the Defendant staggered upon exiting her vehicle.

Singer informed the Defendant why he had stopped her and asked he r to perform

a series of field sobriety tests. The Defendant had been wearing high heels that

night but chose not to wear them during the field sobriety tests.



      Singer first performed an HGN test on the Defendant. Singer testified that

the Defendant’s eyes did not smoothly pursue the pen as he moved it, that he

noticed nystagm us at m aximum deviation, a nd that he noticed the onset of

nystagmus before an angle of forty-five degrees from the Defendant’s line of

sight. He then ask ed the D efenda nt to perform a walk and turn test, consisting

of nine heel-to-toe steps along the fog line of the highway, followe d by a turn and

nine heel-to-toe steps bac k alon g the lin e, all the while w ith the D efend ant’s

hands at her sides. According to Singer, the Defendant missed placing her heel

to her toe on every step, swayed and brought her arms up to maintain balance,

stepped off the white fog line on her first step bac k, and perform ed a military turn

                                          -3-
instead of the type o f turn instruc ted.      Sing er then a sked the Defen dant to

perform a one-legged stand test, consisting of lifting either of her feet

appro ximate ly six inches off the ground and holding it there w hile coun ting to

thirty, all the while with her hands at her sides.        According to Singer, the

Defendant was very unsteady, lifted her arms to maintain balance and put her

foot down five times.      He stopped the test before its completion for the

Defenda nt’s safety.



      After the completion of the tests, Officer Singer believed that the results

indicated that the Defendant’s driving ability was impaired due to the use of an

intoxican t. He placed her under arrest for DUI. The Defendant agreed to take

a breath test at the Williamson County Jail. Officer Singer drove on the trip to the

jail, the Defendant rode in the backseat directly behind him and Officer Chris Ivey

rode in the backseat next to her. Officer Ivey rode in the backseat for the express

purpose of obser ving the D efenda nt prior to the breath te st. Although Officer

Singer did not observe the Defendant during the entire trip, he testified that he did

not witness the Defendant cough, regurgitate, drink, smoke, or place any foreign

material in her mouth. Once they had arrived at th e W illiamso n Cou nty Jail,

Officer Singer administered a breath test on the Intoximeter 3000.             Singer

testified that the result of the breath test indicated that the Defendant had a

0.15% blood alc ohol con tent.



      On cr oss-e xamin ation, S inger a dmitte d that h is repo rt would not indica te

any factors or clue s from the field sobrie ty tests s uppo rting the Defe ndan t’s

sobriety, such as her attentiveness during instructions for the various tests. He

also admitted that he was unaware that the Defendant had asthma. Singer

                                         -4-
testified that the Defendant was carrying a purse, which he placed on the front

seat d uring th e trip to th e jail.



       Officer Chris Ivey testified to es sentially the same facts as Officer Singe r.

Officer Ivey      corroborated         Officer’s   Singer’s   testimony   concerning   the

circumstances surrounding the stop of the Defendant’s vehicle. Ivey noticed an

odor of alco holic beverage and stated that the Defendant was unsteady on her

feet as she exited her car.             Ivey observed Officer Singer as he gave the

Defendant the field sobriety tests. Ivey corrob orated Singer’s testimo ny with

regard to the walk and turn test and the one-legged stand test. Ivey stated that

he was not in a po sition to observe the Defenda nt’s eyes during the HG N test.

Officer Ivey testified that during the trip to the jail, he sat in the backseat of the

patrol car next to the Defendant and observed her continuously in anticipation of

the breath te st. Accord ing to Office r Ivey, the D efendant d id not burp , vomit,

smoke, or consume alcohol or food. Ivey also stated that he did not observe the

Defendant using an inhaler for her asthma.



       On cross-examination, Officer Ivey admitted that he was unaware that the

Defendant had as thma. Ive y stated tha t to the bes t of his recollection, the

Defendant was carrying a purse that night, but that he neve r had cu stody of it.

Officer Ivey testified that although the Defendant was hand cuffed, her wrists we re

sma ll enough for her to slip her hands out of the handcuffs, which she did on at

least one occasion. The Defendant informed the officers of this fact and even put

her han ds bac k in the ha ndcuffs a fter they ha d slipped out.




                                               -5-
       The Defendant testified in m arked con trast to Officers Singe r and Ivey.

She stated that at the time of the offense, she was a student and also worked at

Middle Tennessee Mental Health Institute. She worked from 3:00 p.m. to 11:00

p.m. on Saturday, May 13, 1995. After her shift ende d at 11:00 p.m., she met a

friend, Shannon Batey, and followed her to a nearby dance club known as “Big

Dadd y’s.” They arrived at Big Daddy’s at approximately 11:30 p.m. and remained

there until 2:45 a.m. on Sunday morning.         During that time, the Defendant

consumed two Icehouse brand beers and drank water.               Upon leaving Big

Daddy’s, the Defendant drove to a Waffle House restaurant and ate breakfast

with friends. Sh e did not c onsum e any alco hol with breakfa st. After brea kfast,

she drove home along Interstate 40, exiting at Highway 96. She was pulled over

by Officers Singer and Ivey on Highway 96.



       The Defendant denied driving across the center line of the highway. She

also denied being unsteady on her feet upon exiting her vehicle. It is undisputed

that she knew both officers from h igh school. Sh e testified that the officers we re

sarca stic with her and that she fo und th eir demeanor to be somewhat rude and

intimidating. With regard to the HGN test, she stated that although she was

facing away from the patrol car, she found the flashing emergency lights to be

distracting. With reg ard to the walk and turn test, she stated that she performed

this test in her bare feet on broken, rocky pavement and, as a result, her feet hurt

during the test. She admitted that she pe rformed a military turn during the test,

but stated that Officer Singer never instructed her to do a particular type of turn.

According to the De fendant, she was never asked to perform the one-legged

stand tes t.




                                         -6-
      After her arrest, the Defendant rode to the Williamson County Jail in the

backseat of the patrol car. She testified that Officer Singer drove the patrol car

and Officer Ivey rode in the front pa sseng er seat. A ccording to the De fendan t,

Officer Ivey did not observe her during the trip to the jail. Instead, he and Officer

Singer carried on a conversation. The Defendant testified that although she was

handcuffed, the handcuffs were too large for her wrists. A s a result, she w as ab le

to slip her ha nds ou t of the han dcuffs. During the trip to the jail, she slipped her

hands ou t of the handcu ffs and used a n asthma inhaler.



      Shannon Batey testified for the defense. Her testimony corroborated the

Defe ndan t’s testimony concerning the first half of the evening. In particular,

Batey testified that she had met the Defendant at Middle Tennessee Mental

Health Institute at approximately 11:00 p.m. on May 13, 1995. They drove a

short distance to a da nce c lub kn own a s Big Dadd y’s, arrivin g at ap proxim ately

11:30 p.m. Batey and the Defendant each had two beers during the evening.

Batey stated she was sure the Defendant had consumed only two beers because

they had been together the entire time for safety purposes. They left Big D addy’s

at 2:30 to 2:45 a.m. on May 14, 1995. Batey followed the Defe ndan t to a W affle

House restaurant, where they parted company.               Batey testified that the

Defe ndan t’s driving on the way to th e W affle H ouse was n orma l.



      The Defendant was indicted on one count of DUI. She was tried on

November 11, 1996. After considering the proof presented at trial, the jury found

the De fendan t guilty as cha rged. Sh e now a ppeals to this Cou rt.




                                          -7-
       In her first issue on appeal, the Defendant argues that the evidence was

legally insufficient to suppo rt her con viction. The Defendant contends that the

evidence does not demonstrate that her ability to drive was impaired through the

use of intoxicants . She po ints to her testimony, co rroborated by S hannon Batey,

that she consumed only two beers over the course of three hours. Moreover, she

contes ts the testimony of Officers Singer and Ivey regarding the results of her

field sobriety tests. Furthermore, she argues that the results of her breath test

are not re liable bec ause s he use d an as thma in haler prior to the test.



       When an accused challenges th e sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (1979). Questions concern ing the credibility of the witnesses, the

weight and valu e to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

S.W.2d 620, 623 (T enn. Crim. A pp. 1987).           N or may this cou rt reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).




       A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evid ence and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

                                           -8-
illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.



      In the case sub judice, the trial court instructed the jury on the elements of

the charged offense as follows:

             Any person who commits the offense of driving under the
      influence of an intoxicant is guilty of a crime.
             For you to find the defend ant guilty of th is offense , the state
      must have proven beyond a reasonable doubt the existence of the
      following essential elements:
             (1) that the defendant was driving or was in physical control
             of an automobile or motor driven vehicle;
             (2) that this act occurred on a public road or highw ay or pu blic
             street or alley; and,
             (3) that the defendant was under the influence of an intoxicant
             to the extent her ability to operate an automobile was
             impaired.
      ...
             You have he ard from the proo f that at the time of the
      defendant’s arrest, she consented to and was given a test for the
      purpose of determining the alcohol content of her blood.
             Evidence from the test that there was, at the time alleged, ten-
      hundredths of one percent (.10% ) or mo re by w eight o f alcoh ol in
      the defendant’s blood, creates an inference that the defendant was
      under the influence of such intoxicant, and that her ability to drive
      was impaired.
             If you find from the proof that the defendan t was found by
      means of a blood test or brea th test to have ten-hundredths of one
      percent (.10%) or more by weight of alcohol in her blood, you, the
      jury, are permitted to infer that the defendant was under the
      influence of such intoxicant, and that her ability to drive was
      therefore impaired sufficiently to constitute a violation of the law
      again st driving unde r the influ ence of alco hol.
             Howeve r, you are never required to mak e this infere nce. It is
      the exclusive p rovince o f the jury to determ ine whe ther the fac ts and
      circumstances shown by the evidence in this case warrant any
      inference which the law permits you the jury to draw from any blood
      or breath 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 in ference , and wh at weigh t is to be given to
      such evidence.



                                         -9-
See T.P.I. -- Crim. 38.01, 38.05, 38.05(a ); see also Tenn. Code Ann. §§ 55-10-

401; 55-10-408. The Defendant does not challenge the elements that she was

driving an automobile or that she was driving on a public high way. Her complaint

focuses solely on the issue of impairment by intoxication.



       Reviewing the evid ence in the lig ht most favorable to the State, we can

only conclude that the proof w as leg ally suffic ient to s uppo rt the D efend ant’s

conviction. Officers Singer and Ivey testified that they observed the Defe ndan t’s

vehicle being operated in an unsafe manner, crossing over the center line of

Highway 96. According to the State’s proof, the Defendant was unsteady on her

feet and had an odor of alcohol about her. The Defendant performed a series of

field sobriety tes ts, the resu lts of which indicated impairm ent in the opinion of

Officer Singer. T he De fendan t was then transpo rted to the W illiamson Coun ty

Jail where she was administered a breath test on an Intoximeter 3000. The

results of the breath test revealed that the Defendant had a 0.15% blood alcohol

conten t.



       Of course, the Defendant contests the testimony of Officers Singer and

Ivey regarding her manner of driving on th e night of th e offense and the results

of the field sob riety tests. The resolution of the conflicting testimo ny, however,

was a ma tter for th e jury to r esolve . The ju ry reso lved the issue against the

Defen dant, finding he r guilty. In addition, although the Defendant testified that

she had used an asthma inhaler prior to her brea th test, she offered no expert

proof concerning the effects that the inhalant might have on the results of her

breath test. It was for the jury to dec ide wh ether to accre dit the D efend ant’s

testimony regarding her use of an asthma inhaler and whether her testimony

                                        -10-
created any doubt about the validity of the breath test results. Once again, the

jury resolved the issue against the Defendant. From our review of the record, we

believe that the evidence was legally sufficient to support the jury’s verdict. The

Defen dant’s first issu e lacks m erit.



       In her second issue on app eal, the Defen dant argue s that the trial court

erred in adm itting the result of the Intoxim eter 3000 bre ath test.           More

specifically, she contends that the State did not demonstrate that she was

observed for twenty m inutes im media tely prior to the breath te st. See State v.

Sensing, 843 S.W.2d 412, 416 (Tenn. 1992). Prior to trial, the Defendant filed

a motion to suppress the result of the breath test. The trial court treated the

motion to suppress as a motion in limine and conducted a hearing on July 29,

1996. At the hearing, the Defendant, Officer Singer and Officer Ivey all testified.

At the conc lusion of th e hearin g, the trial cou rt denied the Defe ndant’ s motion,

ruling that the result of the breath test was admissible.



       In Sensing, our Supreme Court set forth the criteria for the admissibility of

breath test results, holding that the testing officer must be able to testify to the

following:

       (1) that the tes ts were performed in accordance with the standards
       and operating pro cedure promulgated by the forensic services
       division of the Tennessee Bureau of Investigation, (2) that he was
       prope rly certified in accordance with those standards, (3) that the
       evidentiary breath testing instrument used was certified by the
       forens ic 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 te st,
       and during this period, he did not have foreign matter in his mouth,
       did not co nsum e any a lcoho lic beverage, smoke, or regurgitate, (5)
       evidence that he followed the prescribed operational procedure, (6)
       identify the printout record offered in evidence as the result of the
       test given to the person tested.

                                          -11-
Sensing, 843 S.W.2d at 416.          The Defendant’s cha llenge in this ap peal is

directe d sole ly at the fourth requirement, the twenty-minute observation period.



       In the present case, it is undisputed that the period between the

Defenda nt’s arrest an d the ad ministratio n of the bre ath test exc eeded twenty

minutes. The focus of the dispute centers instead upon exactly what occurred

during that period of time. O fficer Singer testified that during the trip from the

scene of the arrest to the jail, Officer Ivey sat in the backseat of the patrol car

next to the Defendant for the express purpose of observing her prior to the breath

test. Likewise, Officer Ivey testified that he sat in the backseat of the patrol car

during the trip to the jail and observed the Defenda nt. According to O fficer Ivey,

the Defendant did not cough, regurgitate, consume liquids, use her inhaler or put

anything in her mouth during the period of observation.                  O fficer Singer

adm inistere d the b reath te st to the Defe ndan t upon their arr ival at the jail.



       In contrast, the Defendant testified that Officer Ivey sat in the front

passenger seat of the patrol ca r during the tr ip to the jail. She testified further

that Ivey and S inger we re carrying on a con versation during the trip, not

observing her. In fact, the Defendant stated that s he was able to remove the

handcuffs from her hands and use her asthma inhaler during the trip.



       After hearing the conflicting testimony at the pretrial motion hearing and

evaluating credibility, the trial c ourt foun d that the tw enty-minute observation

requirement had b een m et and ruled th at the D efend ant’s breath test result was

admissible. The trial court was in a better p osition to e valuate credib ility than th is

Court. We believe this record does contain sufficient proof to establish that the

                                           -12-
twenty-minu te observa tion period was sa tisfied. According ly, we cannot conclude

that the trial court erred in admitting the result of the breath test. The Defe ndan t’s

secon d issue la cks m erit.



       In her third issue on appeal, the Defendant argues that the trial court erred

in admitting testimon y conce rning the HGN field sobriety test. In particular, she

contends that the HGN test is scientific evidence and that the State did not

present proof that the HGN test meets the standard of general acceptance in the

scien tific comm unity. See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Thus,

because the State did not establish the reliability of HGN testing through

acceptance in the scientific community, Officer Singer’s testimony concerning the

results of the HGN test performed upon the Defendant should not have been

admitted.



       Prior to trial, the Defendant filed a motion in limine to preclude the State

from offering tes timony re garding the resu lts of the HG N test with out first

requiring the State to demonstrate that the HGN test is ge nerally acce pted in the

scien tific comm unity. The trial court ruled that the results of H GN testing a re not

scien tific evidence and, therefore, the State was not required to prove

acceptanc e in the scientific com munity.



       Our supreme court recently provided guidance on this issue in State v.

Murphy, 953 S.W .2d 200 (Tenn . 1997). C ontrary to the trial c ourt’s ru ling in the

case at bar, our supreme court held in Murphy that the HGN test is a s cientific

test. Murphy, 953 S.W.2d at 201. As such, HGN evidence must satisfy the

admis sibility requirem ents applicab le to scientific e vidence . Id. Contrary to the

                                          -13-
Defe ndan t’s argument in the present case, howe ver, the applic able admis sibility

requirem ents do not stem from Frye. Rather, the 1991 adoption of Rules 702

and 703 of the Tennessee Rules of Evidence superseded the general

acceptance test of Frye. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257,

265 (Tenn. 1997). In explaining the admissibility requirements for scientific

evidence set forth in Rules 702 and 703, our supreme court stated the following:

      In Tennessee, under the recent rules, a trial court must determine
      whether the evid ence will substantially assist the trier of fact to
      determine a fact in issue and whether the facts and data underlying
      the evidence indicate a lack of trustworthiness. The rules together
      nece ssarily require a determination as to the scientific validity or
      reliability of the evidence. Simply put, unless the scientific evidence
      is valid, it will not su bstan tially ass ist the trie r of fact, n or will its
      underlying facts and data appear to be trustworthy, but there is no
      requirement in the rule that it be generally accepted.

            Although we do n ot expres sly adop t Daube rt [v. Merrell Dow
      Phar mac eutica ls, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
      (1993)], the non-exclus ive list of factors to determine reliability are
      useful in applying our Rules 7 02 and 703. A Tennes see trial court
      may consider in determining reliability: (1) whether scientific
      evidence has been tested and the methodology with which it has
      been tested; (2) whether the evidence has been subjected to peer
      review or publication; (3) whether a potential rate of error is known;
      (4) whether, as formerly requ ired by Frye, the evid ence is gene rally
      accepted in the sc ientific co mm unity; an d (5) w hethe r the ex pert’s
      research in the field has been conducted independent of litigation.

Id.



      In the case sub judice, the trial court found that the results of the HGN test

did not co nstitute scientific evidence. In light of o ur sup reme court’s holdin g in

Murphy, the trial cour t’s finding wa s errone ous. See Murphy, 953 S.W.2d at 201.

The trial judge, because he did not find HGN evidence to be scientific, obviou sly

made no determination with regard to whether the HGN evidence satisfied the

admis sibility requirem ents ap plicable to scientific evidence. From the record now




                                           -14-
before us, we are un able to determ ine wh ether th e app licable adm issibility

requirem ents we re met. See Murphy, 953 S.W.2d at 201-02.



      Considering the record in its entirety, however, we do not believe that the

admis sibility of Officer Singer’s testimony concerning the results of the

Defe ndan t’s HGN test appears to have affected the result of the trial on the

merits. The State offered a great deal of evidence other than the results of the

HGN test in support of the guilt of the Defendant. Officers Singer and Ivey

testified that the Defendant’s car crossed the center line of Highway 96, that the

Defendant was unsteady on her feet, and that they noticed an odor of alcohol

about the Defendant. In addition, Officer Singer testified that the results of the

walk and turn test and the one-legged stand test indicated that the Defendant

was impaired due to intoxication. Furthermore, Officer Singer testified that the

result of the breath test administered to the Defendant revealed that she had a

0.15% blood alc ohol con tent.



      The Defenda nt contested n umerou s aspects of the State’s evidence,

including the testimony regarding her manner of driving, whether she was steady

on her feet, her performance on the walk and turn test and whether the one-

legged stand test was even p erform ed. Mo reove r, the D efend ant su cces sfully

cross-examined Officer Singer regardin g his kno wledge of the HG N test.

Although Officer Sin ger testified on direct e xamina tion that he was trained and

certified to administer the HGN test, cross-examination revealed that Sin ger did

not recall having been taught about the effect various prescription drugs might

have on nystagmus. Singer admitted that he did not know if some drugs might

cause early or exagge rated nystagm us or that fatigue might have an effect on

                                       -15-
nystagmus. In short, the cross-examination of Officer Singer was vigorous and

called into q uestion th e depth of his kno wledge of the HG N test.



       In spite of the Defendant’s rigorous cross-examination concerning the HGN

test and her own testimony contradicting the observations of Officers Singer and

Ivey, it is clear from the guilty verdict that the jury simply did not accredit the

Defendant’s version of the facts. The jury performed its function of evaluating

credibility and res olving con tradictory tes timony, e ventually find ing that the State

had established the Defendant’s guilt beyond a reasonable doubt. In view of the

volume of evidence other than the HGN test offered by the State to support the

guilt of the Defendant, we conclude that any error on the pa rt of the tr ial cou rt in

admitting the HGN evidence was harmless under the circumstances of this case.

See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).



       For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s issues on appeal provide no basis for the reversal of her conviction.

We therefore affirm the ju dgme nt of the trial co urt.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                          -16-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JOSEPH M. TIPTON, JUDGE




                             -17-
