             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE               FILED
                          FEBRUARY 1998 SESSION
                                                            July 22, 1998

                                                         Cecil W. Crowson
STATE OF TENNESSEE                )                     Appellate Court Clerk
                                  )          NO. 01C01-9705-CC-00189
      Appellee                    )
                                  )          WILLIAMSON COUNTY
v.                                )
                                  )          Hon. Henry Denmark Bell
ROY D. LEACH                      )
                                  )          (D.U.I.)
      Appellant.                  )
                                  )


For the Appellant:                           For the Appellee:

Virginia Lee Story                           John Knox Walkup
136 Fourth Avenue South                      Attorney General & Reporter
P.O. Box 1608
Franklin, TN. 37065                          Karen M. Yacuzzo
                                             Assistant Attorney General
                                             425 Fifth Avenue North
                                             2nd Floor, Cordell Hull Building
                                             Nashville, TN. 37243-0493

                                             Joseph D. Baugh, Jr.
                                             District Attorney General
                                             Williamson County Cthse.
                                             Suite G-6, P.O. Box 937
                                             Franklin, TN. 37065-0937




OPINION FILED:____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                   OPINION

         The appellant, Roy D. Leach, appeals as of right his conviction in the Circuit

Court of Williamson County. After a bench trial, the appellant was convicted of driving

under the influence of an intoxicant and was sentenced to eleven (11) months and

twenty nine (29) days in the county jail. The trial court ordered the sentence to be

suspended for a term of probation upon the service of forty eight (48) hours in jail.

Additionally, the appellant’s driver’s license was revoked for one (1) year and he was

ordered to pay a three hundred and fifty ($350) dollar fine.

         On appeal, the appellant challenges the sufficiency of the convicting evidence.

We affirm the judgment of the trial court.

         Around midnight on July 10, 1996, the appellant was stopped by Deputy

Deborah Rogers of the Williamson County Sheriff’s Department after she observed

him weaving in traffic with his headlights turned off. Deputy Rogers testified that she

approached the appellant’s truck and noticed an odor of alcohol on his breath. She

informed the appellant that she had noticed him veering in the road and he admitted

that he had been drinking alcoholic beverages earlier in the evening.

         Deputy Rogers conducted three field sobriety tests on the appellant. The first

test was the horizontal gaze nystagmus (“HGN”) test in which the appellant was

required to follow the movement of the deputy’s finger with his eyes. 1 According to

Deputy Rogers, the appellant failed the test because he could not follow the

movement of her finger. Instead, his eyes made jerking movements and displayed

signs of intoxication.

         Deputy Rogers provided the only testimony concerning the appellant’s HGN

test. Although not raised by either party on appeal, our supreme court has recently


         1
          Nystagmus is an involuntary jerking movement of the eye as it attempts to focus on a fixed
point or as it mo ves f rom side t o side . The unst ead y mo tion re sults from the b ody’s attem pt to m ainta in
orientation a nd balan ce. See State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997)(citing State v. Cissne,
865 P.2d 564, 566 (1994)). “The theory behind the [HGN] test is that there is a strong correlation
between the am ount of alcohol a person consu mes and the angle of onset of nystagmus .” Murphy 953
S.W.2d at 202 (quoting State v. W itte, 836 P.2d 1110, 11 12 (199 2)(quotin g Carp er & Mc Cam ey, Gaze
Nystagmus: Scientific Pr oof of DU I?, 777 Ill.B.J. 146, 147 (1988)) ).

                                                        2
held that testimony concerning the HGN test constitutes “scientific, technical, or other

specialized knowledge.” See State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997). As

such, it must be offered through a qualified expert witness in accordance with Rules

702 and 703 of the Tennessee Rules of Evidence. Id.

        In this case, Deputy Rogers was not qualified as an expert on how alcohol

consumption affects eye nystagmus. However, we conclude that any error in that

regard was harmless beyond a reasonable doubt. Tenn. R. App. P. 36(b); Tenn. R.

Crim. P. 52(a). The remaining evidence against the appellant was sufficient to warrant

his conviction.

        The second field sobriety test was the “walk and turn.” Using lines on the

parking lot, Deputy Rogers ordered the appellant to walk heel-to-toe in a straight line

for nine steps before turning around and returning in the same manner. Deputy

Rogers testified that she explained the test to the appellant; however, he was unable

to successfully complete it. The appellant had trouble maintaining balance, he failed

to walk heel-to-toe, and he stopped several times to be reminded how to finish the

test.

        The final test was the “one-leg stand.” Deputy Rogers testified that before

administering the test, she followed her customary procedure of asking the suspect

about any existing leg or back ailments. She stated that the appellant made no

complaints of any existing physical problems and attempted three times to complete

the test. According to Deputy Rogers, the appellant repeatedly put his other leg down

and on one occasion, told the deputy that the test was too difficult.

        In addition, Deputy Rogers observed the appellant’s demeanor during the field

sobriety tests. She testified that the appellant had trouble remembering the test

instructions and, at times, appeared both nervous and aloof. She stated that at one

point, the appellant began to turn and walk away while she was explaining a test to

him. From her observations, she determined that the appellant was intoxicated and

arrested him for D.U.I..

                                            3
        Deputy Rogers testified that she informed the appellant about the optional

blood/alcohol and breath examinations. The appellant, however, declined both tests,

claiming that he had not been drinking. Deputy Rogers initially testified that she took

the appellant to the local jail when he refused the blood and breath exams. She later

recalled that she first took the appellant to a nearby hospital before he was

transported to jail.

        The appellant testified in his own defense that he was returning from a fishing

trip when Deputy Rogers conducted the traffic stop. According to the appellant, he

was not driving with his lights off and he never admitted to consuming alcoholic

beverages. He further disputed the deputy’s testimony concerning the manner of his

dress2 and the manner in which she conducted the sobriety tests. The appellant

testified that Deputy Rogers conducted the HGN eye test with a pen instead of her

finger, and he stated that the deputy never questioned him about any physical

problems before he performed the “one-leg stand” test.

        The appellant further testified that after his arrest, Deputy Rogers transported

him to a nearby hospital for a blood test. The appellant signed an implied consent

form at the hospital, but did not take the blood test. He testified that instead, he

requested to take a breathalyser, but the deputy refused to administer that exam. The

appellant stated that he had not been drinking and that, in his opinion, he successfully

completed each of the field sobriety tests.

        The appellant’s cousin, Michael Carter, testified for the defense that he had

been with the appellant from 8:30 p.m. that evening until approximately midnight. Mr.

Carter testified that he did not see the appellant drink alcoholic beverages and that

appellant did not smell of alcohol. He further stated that the appellant did not show

any signs of intoxication when appellant parked a fishing boat between two cars that




        2
         Deputy Rogers testified that the appellant was wearing a tank top, long pants, and hiking boots
on the evening of the arrest. In contrast, the appellant stated that he was wearing a brown T -shirt, short
pants and tennis shoes.

                                                     4
evening. However, Mr. Carter admitted that he was working on a car while he was

with the appellant and that he did not closely observe appellant’s actions.

        In considering the above evidence, the trial judge noted that the case turned on

the credibility of the witnesses. The trial judge accredited the testimony of Deputy

Rogers and found the appellant guilty of D.U.I..

        The appellant contends that the testimony of Deputy Rogers alone is

insufficient to support his conviction of D.U.I.. He argues that her testimony was

impeached by alleged inconsistencies and by his own testimony at trial. The trial court

noted the conflicting testimony between Deputy Rogers and the appellant and chose

to accredit the deputy’s testimony. That determination is accorded substantial

deference on appeal and will not be reweighed or re-evaluated by this Court. See

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). 3

        From the record, we conclude that the evidence was sufficient for a rational trier

of fact to convict the appellant of D.U.I.. The appellant has failed to carry his burden

of demonstrating otherwise.

        Accordingly, the judgment of the trial court is affirmed.



                                                           ____________________________
                                                           WILLIAM M. BARKER, JUDGE


CONCUR:


____________________________
GARY R. WADE, Presiding Judge


____________________________
J. CURWOOD WITT, JR., JUDGE




        3
           Although this case involved a bench trial, the findings of the trial judge who conducted the
procee dings ca rry the sam e weight a s a jury verd ict. See State v. T ate, 615 S.W.2d 161, 162 (Tenn.
Crim. App. 1981). A guilty verdict rendered by a jury accredits the State’s witnesses and a presumption
of guilt replac es the pr esum ption of inno cence . See State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1973 ).

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