           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                              FILED
                           AT KNOXVILLE
                                                             October 12, 1999

                        APRIL 1999 SESSION                  Cecil Crowson, Jr.
                                                           Appellate Court Clerk




STATE OF TENNESSEE,        *    C.C.A. NO. 03C01-9808-CR-00278

      Appellee,            *    HAMBLEN COUNTY

v.                         *    Hon. James E. Beckner, Judge

DAVID E. HANCOCK,          *    (DUI-Second Offense)

      Appellant.           *




For Appellant:                  For Appellee:

P. Richard Talley               John Knox Walkup
P.O. Box 950                    Attorney General and Reporter
Dandridge, TN 37725             450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Todd R. Kelley
                                Assistant Attorney General
                                Criminal Justice Division
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                John Dugger
                                Assistant District Attorney General
                                510 Allison Street
                                Morristown, TN 37814


OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                   OPINION

                  On March 23, 1998, the appellant, David E. Hancock, was convicted

by a jury in the Hamblen County Criminal Court of driving under the influence (DUI),

second offense. The trial court imposed a sentence of eleven months and twenty-

nine days, with a minimum of twenty percent to be served prior to release. The trial

court also suspended the appellant’s driver’s license for two years.



                  In this appeal as of right, the appellant presents the following issues

for our review:

                  (I) Whether the evidence is sufficient to sustain the
                  appellant’s conviction of DUI; and

                  (II) Whether certain statements made by the prosecuting
                  attorney during closing argument constituted
                  prosecutorial misconduct.


Following a review of the record and the parties’ briefs, we affirm the judgment of

the trial court.



                                         I. Factual Background

                  On June 8, 1997, the appellant was driving a Peterbilt truck on Old

Kentucky Road in Hamblen County. 1 As the appellant attempted to navigate a

sharp turn, he lost control of the truck and went off the road. When the appellant

tried to steer back onto the road, he overcorrected and traveled across the road into

Edward Fox’s yard. Carroll Talley, who was traveling behind the truck, witnessed

the accident.



       Talley testified on behalf of the State that on June 8, 1997, at approximately

4:30 p.m., he was driving west on Old Kentucky Road, when a truck driven by the


       1
           The a ppellant w as driving th e truck tractor witho ut the trailer atta ched.

                                                        2
appellant pulled out of a side street into his lane of traffic. Talley was forced to

decrease his speed to avoid a collision with the appellant. Talley testified that he

had followed the appellant for approximately one-half to three-quarters of a mile

when the appellant reached a sharp curve in the road and veered off the right side

of the road. As the appellant overcorrected, his truck traveled back across the road,

and crashed into Edward Fox’s yard. In the process, the appellant damaged

shrubbery, a road sign, and a mailbox. Talley stated that the appellant’s truck was

not forced off the road by another vehicle.



       After witnessing the accident, Talley stopped his car and went to the

residence on the property where he located the property owner, Edward E. Fox.

Talley testified that when he and Fox returned to the accident scene, the appellant

was repeatedly driving the truck forward and backward in an attempt to free it from

the shrubbery. Fox approached the truck and attempted to talk to the appellant;

however, the appellant did not acknowledge his presence. Instead, the appellant

continued his attempts to extricate his truck from the shrubbery for approximately

20 to 30 minutes, until the police arrived. Talley testified that the appellant fell as he

exited the truck. However, Talley was not aware of any injuries to the appellant and

stated that the appellant was cooperative with the police.



            Edward E. Fox, a resident on Old Kentucky Road, testified that during

the afternoon of June 8, 1997, an accident occurred in his yard. Fox testified that

shortly thereafter, Talley came to his door and notified him of the accident. When

he and Talley returned to the accident scene, Fox noticed that his shrubbery was

damaged. He recalled that the appellant was in his truck and was apparently trying

to free it from the shrubbery by repeatedly driving it forward and backward. The

appellant did not leave the truck to survey the damage until the police arrived. Fox


                                            3
also testified that the appellant fell as he stepped out of his truck. Moreover, Fox

observed some of the field sobriety tests administered by the police, and based on

his observations, opined that the appellant was under the influence of an intoxicant.

Fox further noted that the curve on which the appellant lost control of his truck was a

“bad curve” and had been the scene of a number of accidents in recent years.



              The state also presented the testimony of Jeff Atkins, a deputy sheriff

with the Hamblen County Sheriff’s Department. Officer Atkins testified that on June

8, 1997, at approximately 4:07 p.m., he was dispatched to an accident on Old

Kentucky Road. He arrived at the scene of the accident at approximately 4:24 p.m.

Deputy Atkins immediately observed a Peterbilt truck which had apparently crashed

into a yard adjacent to the road. Deputy Atkins also noted that the truck had

damaged shrubs, fence posts, and a street sign. When Deputy Atkins arrived, the

appellant was in his truck and was trying to drive the vehicle.



              Deputy Atkins further testified that when he was able to get the

appellant’s attention, he told the appellant to exit the truck. As the appellant opened

the door, Deputy Atkins smelled alcohol. Moreover, the appellant stumbled upon

exiting, and Deputy Atkins recalled assisting the appellant out of the truck. Deputy

Atkins then asked the appellant if he had been drinking, and the appellant replied,

“No sir.” When Deputy Atkins questioned the appellant regarding the cause of the

accident, the appellant told him that another vehicle had forced him off the road. At

some point, Deputy Atkins noticed that the appellant had a “black eye,” and inquired

whether the appellant needed medical treatment. The appellant refused medical

treatment, stated that he had struck the rear view mirror and, “was just fine.”

Furthermore, Deputy Atkins also discovered an empty beer can in the truck.




                                           4
              Although Deputy Atkins did not administer the field sobriety tests, he

observed the appellant perform the tests. Deputy Atkins recalled that the appellant

was cooperative and followed instructions, but he performed poorly. Also, he noted

that the appellant “had an odor of alcohol about him.” Based on the appellant’s

performance and his other observations, Deputy Atkins concluded that the appellant

was intoxicated and not injured. Later, while Deputy Atkins was transporting the

appellant to the Morristown Police Department to administer an Intoximeter test, he

again asked the appellant if the appellant had consumed any alcohol that day. The

appellant replied that he had drunk one beer.



              Hugh Moore, a Captain with the Hamblen County Sheriff’s

Department, testified that he was dispatched to the scene of the accident to offer

assistance to Deputy Atkins. After being briefed by Deputy Atkins, Captain Moore

suspected that the accident was alcohol related. Deputy Atkins testified that there

was “an odor of alcohol about [ the appellant ].” Moreover, Captain Moore did not

inquire specifically if the appellant was injured because Deputy Atkins informed him

that the appellant had refused medical treatment. However, Captain Moore recalled

that the appellant had an “obvious” injury to his face. Captain Moore also stated

that the curve on which the appellant lost control of the tractor was a “bad curve”

and had been the scene of a number of accidents in recent years.



              Captain Moore also testified that he administered three field sobriety

tests to the appellant: the finger-to-nose test, the walking heel-to-toe test, and the

one leg stand test. Although the appellant followed his directions, Captain Moore

noted that the appellant was “having trouble with his balance.” During the finger-to-

nose test, the appellant missed the tip of his nose. Moreover, during the heel-to-toe

test, the appellant only completed approximately four steps. The appellant


                                           5
explained that his poor performance was due to the worn soles on his boots.

Finally, during the one leg stand, the appellant was unable to keep his foot elevated.

Throughout the testing, the appellant did not appear confused or addled. Based on

the appellant’s performance, his personal observations, and the information

regarding the accident, Captain Moore concluded that the appellant was impaired as

a result of intoxication. He placed the appellant under arrest and ordered Deputy

Atkins to transport the appellant to the Morristown police station.



       Additionally, the State presented the testimony of Tim Wolfenbarger, an

officer with the Morristown Police Department. Officer Wolfenbarger was ordered to

administer an Intoximeter test to the appellant in order to measure the blood alcohol

level in the appellant’s body. Officer Wolfenbarger testified that he was certified to

administer the test and that the machine had been certified by the Tennessee

Bureau of Investigation on May 6, 1997. Further, Officer Wolfenbarger testified that

he followed all of the operating procedures and that the Intoximeter was working

properly. The appellant tried three separate times to blow into the Intoximeter;

however, the Intoximeter results registered an insufficient sample.



              The appellant offered the deposition testimony of Dr. Donald C.

Thompson, the appellant’s physician. Dr. Thompson testified that his associate

treated the appellant at his office on June 11, 1997, three days after the accident.

On that day, the appellant complained of headaches, blurred vision, light

headedness, and “feeling scattered.” Additionally, the appellant had a “black eye”

and his pupils were unequal, indicating that he had experienced head trauma.

Further, the attending physician noted that the appellant had a staggering gait.

Based on these observations, the attending physician concluded that the appellant

“probably had a concussion,” and prescribed analgesics and muscle relaxants. Dr.


                                           6
Thompson did not personally see the appellant until July 7, 1997, approximately one

month after the accident.



              Dr. Thompson further testified that the appellant’s symptoms

immediately following the accident would be more severe than the symptoms which

were observed at the doctor’s office. Moreover, Dr. Thompson stated that the

symptoms of an intoxicated person would be similar to the symptoms of a person

suffering from a head injury. Finally, Dr. Thompson opined that the appellant’s head

injury could have affected his ability to perform the Intoximeter test.



              On cross-examination, Dr. Thompson stated that his testimony was

primarily based on the notes of his associate, not his personal observations. Dr.

Thompson stated that the appellant, as a result of his head injury, was “addled,”

“deluded,” and “did not have a good contact with his reality” in his refusal of medical

treatment. Moreover, Dr. Thompson opined that the appellant was probably still

addled when he visited his office three days after the accident. On cross

examination, Doctor Thompson admitted that he had plead guilty to driving under

the influence approximately one week prior to his testimony.




                                      II. Analysis

A. Sufficiency of the Evidence

              The appellant contends that the record contains insufficient evidence

to sustain his conviction for driving under the influence. Specifically, the appellant

argues that although there is evidence in the record that indicates the appellant was

impaired by alcohol, there is also ample evidence from which the jury could have


                                            7
determined that the appellant simply had an accident on a “bad curve” and that his

physical condition at the scene was a result of his head injury, not intoxication.



              In Tennessee, appellate courts accord considerable weight to the

verdict of a jury in a criminal trial. In essence, a jury conviction removes the

presumption of the defendant’s innocence and replaces it with one of guilt, so that

the appellant carries the burden of demonstrating to this court why the evidence will

not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The appellant must establish that “no reasonable trier of fact” could have found the

essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn R. App. P. 13(e).



              Accordingly, on appeal, the State is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn therefrom.

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions

concerning the credibility of witnesses and the weight and value to be given the

evidence, as well as factual issues raised by the evidence, are resolved by the trier

of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.

1990). Furthermore, it is well established that the offense of driving under the

influence of an intoxicant may be established by circumstantial evidence. State v.

Gilbert, 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988); State v. Woods, No. 03C01-

9804-CC-00163, 1999 WL 427657, at *3-4 (Tenn. Crim. App. at Knoxville, June 28,

1999).



              With respect to the appellant’s conviction of driving under the

influence, the applicable statute provides:

              (a) It is unlawful for any person to drive or be in physical
              control of an automobile or other motor driven vehicle on

                                              8
                 any of the public roads and highways of the state . . .
                 while:
                        (1) Under the influence of any intoxicant,
                        marijuana, narcotic drug, or drug producing
                        stimulating effects on the central nervous
                        system; . . . .

Tenn. Code Ann. § 55-10-401 (1998). In this case, the jury convicted the appellant

of driving under the influence pursuant to an indictment charging that the appellant

                 did unlawfully commit the offense of driving under the
                 influence by driving a Peterbilt tractor upon the public
                 roads and highways of the State of Tennessee while
                 under the influence of an intoxicant, to-wit: alcohol,
                 marijuana, narcotic drug or a drug producing stimulating
                 effects on the central nervous system: a Class A
                 misdemeanor in violation of Tenn. Code Ann. § 55-10-
                 401. . . .


                  We conclude that the evidence, when viewed in a light most favorable

to the State, was sufficient for a rational jury to reject the appellant’s theory and find

beyond a reasonable doubt that the appellant had committed the offense of driving

under the influence of an intoxicant.2 Talley, the only eye-witness to the accident,

testified that the appellant was driving his truck on Old Kentucky Road when he lost

control of the truck and crashed into Fox’s yard. Talley, Fox, and Deputy Atkins all

testified that the appellant fell or stumbled upon exiting his truck.



            Deputy Atkins testified that he smelled alcohol when the appellant opened

the door of his truck, and, furthermore, Deputy Atkins and Captain Moore both

stated that the appellant “had an odor of alcohol.” Deputy Atkins also testified that

the appellant declined his offer of medical treatment. Moreover, Deputy Atkins



        2
           See State v. Guilds, No. 0 1C0 1-98 04-C C-0 018 2, 19 99 W L 333 368 , at *3- 4 (T enn . Crim .
App. at N ashville, Ma y 27, 1999 ); State v. Washington, No. 02C01-9710-CR-00408, 1998 WL 855458,
at *1-2 (T enn. Cr im. Ap p. at Jack son, De cem ber 10, 1 998); State v. Blackman, No. 01C01-9708-CC-
00335 , 1998 W L 7618 11, at *4-5 (Tenn . Crim. A pp. at Na shville, Oc tober 30 , 1998); State v. Pic kett,
No. 01C01-9710-CC-00472, 1998 WL 559408, at *2-3 (Tenn. Crim. App. at Nashville, August 31,
1998); State v. Sc hwartz , No. 01C01-9705-CC-00190, 1998 WL 120307, at *4-5 (Tenn. Crim. App. at
Nash ville, March 18, 1998 ); State v. Turner, No. 03C0 1-9604-C C-00151 , 1997 W L 379158 , at *2
(Tenn . Crim. A pp. at Kno xville, July 9, 199 7).

                                                     9
testified that he discovered an empty beer can in the appellant’s truck and that the

appellant later admitted to drinking one beer prior to driving. Finally, both Deputy

Atkins and Captain Moore testified that the appellant performed poorly on three field

sobriety tests. Based on their observations, both officers concluded that the

appellant was under the influence of an intoxicant.



              In this case, the appellant essentially asks this court to reconsider the

evidence and substitute a verdict of not guilty in exchange for the verdict found by

the jury. That is not our function. We conclude that a rational jury could have found

beyond a reasonable doubt that the appellant had committed the offense of driving

under the influence of an intoxicant. This issue is without merit.



B. Prosecutorial Misconduct

              The appellant also contends that certain statements made by the

prosecutor during closing argument constituted prosecutorial misconduct. Even

though the appellant voiced an objection that the argument was improper and the

trial court sustained the objection, the appellant did not request any curative

measures. The appellant further argues that the prosecutor intended to unduly

prejudice him by his continued remarks. The relevant portion of the prosecutor’s

closing argument is as follows:

              And what’s scary, he’s operating one of the biggest
              vehicles on the road. What if somebody had been
              coming the other way when that happened? They would
              be dead. They wouldn’t have a chance.

              Mr. Talley: If the Court please, that’s improper argument.

              The Court: Sustained.

              Mr. Dugger: Peterbilt tractors are big vehicles. The least
              little bit of drinking or anything on driving those things --
              They’re saying how -- the defense is saying how between
              the centerline and the roadway, how they have to keep
              that thing -- how it’s so hard to keep it in there because

                                           10
              it’s so big. Well, that should be even more reason that
              you shouldn’t drink anything, driving one of those big
              vehicles because other people don’t have a chance.


              Our state courts have recognized that a closing argument is a valuable

privilege for both the State and the defense, and, accordingly, have afforded wide

latitude to counsel in presenting final argument to the jury. State v. Cribbs, 967

S.W.2d 773, 783 (Tenn. 1998); State v. Cauthern, 967 S.W.2d 726, 736 (Tenn.

1998). Although trial courts have discretionary authority to control the argument of

counsel, “[c]losing arguments must be temperate, must be based upon the evidence

introduced at trial, and must be relevant to the issues at trial.” State v. Coker, 911

S.W.2d 357, 368 (Tenn. Crim. App. 1995). The standard of review in determining

whether counsel was allowed too much latitude during closing argument is abuse of

discretion. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978).



              If prosecutorial conduct is deemed improper, the appellate court must

determine “whether the impropriety affected the verdict.” State v. Pulliam, 950

S.W.2d 360, 367 (Tenn. Crim. App. 1996). See also Harrington v. State, 385

S.W.2d 758, 759 (Tenn. 1965). Prejudice is assessed by analyzing the misconduct

in light of the factors set forth in Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.

App. 1976):

              (1) the misconduct viewed in the context and the facts
              and the circumstances of the case;

              (2) any curative measures taken by the court or the
              prosecutor;

              (3) the intent of the prosecutor;

              (4) the cumulative effect of the misconduct in view of the
              consequences of any other errors in the trial; and

              (5) the “relative strength or weakness of the case.”




                                           11
      Although the prosecutor’s remarks were improper, they were relatively brief

and there is no evidence that the prosecutor intended to unduly prejudice the

appellant by his remarks. Moreover, while the court gave no curative instructions to

the jury, the appellant did not ask the court to do so. There were only very minor

errors in the trial and the state presented a strong case. Considering all these

factors, we conclude that the prosecutors remarks, particularly in view of the

strength of the state’s case, were insignificant. This issue has no merit.



                Accordingly, the judgment of the trial court is affirmed.




                                         __________________________________
                                         Norma McGee Ogle, Judge




CONCUR:

______________________________
Jerry L. Smith, Judge

_______________________________
Joe G. Riley, Judge




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